Coulibaly v. Kerry , 213 F. Supp. 3d 93 ( 2016 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
TIEMOKO COULIBALY, :
:
Plaintiff, : Civil Action No.: 14-0189 (RC)
:
v. : Re Document Nos.: 30, 36, 39
:
JOHN KERRY, U.S. Secretary of State, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE FOURTH AMENDED COMPLAINT;
GRANTING PLAINTIFF’S MOTION TO ADD NEWLY ACQUIRED EVIDENCE
I. INTRODUCTION
Plaintiff Dr. Tiemoko Coulibaly, proceeding pro se and in forma pauperis, brings this
action against the United States, the Secretary of State, and twelve other individuals who are
current or former employees of the U.S. Department of State, the Merit Systems Protection
Board (“MSPB”), or the Equal Employment Opportunity Commission (“EEOC”). In a
twenty-two count complaint, Dr. Coulibaly alleges discrimination, retaliation, First Amendment
violations, common law tort contract violations, and violations of various federal and District of
Columbia statutes. Currently pending before the Court are (1) Defendants’ pre-discovery motion
to dismiss or, in the alternative, for summary judgment; (2) Dr. Coulibaly’s motion for leave to
file a fourth amended complaint; and (3) Dr. Coulibaly’s motion to add newly acquired evidence.
For reasons discussed in this opinion, the Court dismisses or grants summary judgment to
Defendants on all of Dr. Coulibaly’s claims asserted in his third amended complaint, with the
exception of his First Amendment claim based on 2007 events (asserted in Count 5 of his
complaint), as asserted against individual defendants; his Title VII hostile work environment
claim (Count 6); his wrongful discharge claim (Count 13); and his claim of retaliation based on
2009 events (asserted in Count 16). As explained below, the individual defendants must be
served so that they may respond to Count 5, and genuine disputes of material fact exist on the
other three counts, which the parties should explore during discovery. The Court will
accordingly deny Defendants’ motion with respect to these four counts.
Dr. Coulibaly’s proposed fourth amended complaint reasserts many claims from his third
amended complaint (including many that, as discussed below, must be dismissed). And many of
Dr. Coulibaly’s proposed additional claims are factually unrelated and legally distinct from the
ones in his third amended complaint, such that allowing consideration of them here would
unnecessarily delay this case’s progress. The Court will therefore deny Dr. Coulibaly’s motion
for leave to file a fourth amended complaint. Lastly, because Defendants consent to
Dr. Coulibaly’s motion to add newly acquired evidence, the Court will grant that motion.
II. FACTUAL BACKGROUND1
A. Employment as an FSI Contractor (1999–2011)
Employment Status
Dr. Coulibaly is an African American from the Ivory Coast. Pl.’s Third Am. Compl.
(“Compl.”) ¶ 19, ECF No. 28. In 1999, Dr. Coulibaly joined the Department of State’s Foreign
1
At the motion-to-dismiss stage, the Court presumes that the plaintiff’s factual
allegations in the complaint are true. See, e.g., United States v. Philip Morris, Inc., 116 F. Supp.
2d 131, 135 (D.D.C. 2000). When citing to documents outside of the pleadings, the Court views
the evidence in the light most favorable to Dr. Coulibaly. See Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986) (explaining that, in the summary judgment context, “[t]he evidence of
the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor”).
The Court cites to Defendants’ statement of material facts when Defendants’ version of the facts
agrees with Dr. Coulibaly’s.
2
Service Institute (“FSI”) as a French instructor. Id. FSI originally hired him as a contractor
under a series of Blanket Purchase Agreements (“BPAs”). See id. ¶ 119; Defs.’ Statement of
Material Facts as to Which There Is No Genuine Dispute (“Defs.’ Facts”) ¶¶ 1−3, ECF No. 30.
During this time, to stay employed as an FSI contractor each year, Dr. Coulibaly had to ensure
that FSI would renew his contract. See Compl. ¶¶ 74–75. When he started working at FSI,
Dr. Coulibaly reports that Dr. Jane Kamide was the head of the French section, and that Solomon
Atayi served as her deputy. Id. ¶ 70.
Discussions About Political Statements
Later during Dr. Coulibaly’s time as an FSI contractor, Solomon Atayi served as head of
the French section and as Dr. Coulibaly’s supervisor. Compl. ¶¶ 21, 54, 65. According to
Dr. Coulibaly’s complaint, Mr. Atayi is an African American from Togo. Id. ¶¶ 21, 55.
Dr. Coulibaly asserts that, after Mr. Atayi learned that Dr. Coulibaly had been giving statements
to the media about political events occurring in the Ivory Coast, Mr. Atayi told Dr. Coulibaly
that he had “no right to give interviews to radio, TV, [or] newspapers on his country of origin”
Defendants argue that, in violation of this Court’s local rule, Dr. Coulibaly did not submit
a “separate concise statement of genuine issues setting forth all material facts as to which . . .
there exists a genuine issue necessary to be litigated,” and so Defendants’ own statement of
material facts “should be deemed admitted.” Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. Dismiss or, in
the Alt., for Summ. J. (“Defs.’ Reply”) at 5−6, ECF No. 42 (quoting D.D.C. Civ. R. 7(h)(1)).
In his opposition brief, however, Dr. Coulibaly does list a series of facts that he titles
“Statement of Undisputed Material Facts Established by the Agency’s Official Extensive EEO
Report of Investigation (ROI) as to Which There Is No Genuine Dispute . . . .” Mot. Leave Pl.’s
Fourth Am. Compl. & Pl.’s Resp. Gov’t Mot. Dismiss or in the Alt. Summ. J. (“Pl.’s Resp.”) at
118, ECF No. 36-1. And, while disorganized and quite repetitive, Dr. Coulibaly’s statement of
facts does attempt to cite facts gleaned from various exhibits that he attached to his opposition
brief. See, e.g., Pl.’s Resp. ¶¶ 237, 244, 256. Because Dr. Coulibaly’s statement thus loosely
complies with Local Civil Rule 7(h)(1), the Court declines to deem Defendants’ statement of
facts admitted. See generally D.D.C. Civ. R. 7(h)(1) (requiring briefs opposing summary
judgment to include merely “a separate concise statement of genuine issues setting forth all
material facts as to which it is contended there exists a genuine issue necessary to be litigated,
which shall include references to the parts of the record relied on to support the statement”).
3
because Dr. Coulibaly was an employee of the Department of State. Id. ¶¶ 65–66. Dr. Coulibaly
also asserts that Mr. Atayi further told Dr. Coulibaly that, even though Dr. Coulibaly was in line
to become a “direct-hire” FSI employee, Mr. Atayi believed that hiring Dr. Coulibaly was “not a
good idea” because of Dr. Coulibaly’s “political articles against the Ivorian government.” Id.
¶ 54. Along those lines, Mr. Atayi allegedly stated that appointing Dr. Coulibaly as an employee
“could create political problems” between the Department of State and the Ivory Coast. Id.
Dr. Coulibaly further asserts that Mr. Atayi’s supervisor, “Micha,” who Dr. Coulibaly
reports is white, also took Mr. Atayi’s views. See id. ¶ 57. In a conversation with Dr. Coulibaly,
Micha allegedly told Dr. Coulibaly that “it [was] not a good idea to hire him as [an] employee”
because Dr. Coulibaly “was a political asylee” in the United States and because “his writing
could also create some political problems.” Id. Dr. Coulibaly states that, in support of her
statement, Micha alluded to a past incident in which “an individual working for [the] State
Department was also [a] political [a]sylee” and in which “his speech against the [g]overnment of
his country created some political tensions” between the United States and that individual’s
country of origin. Id.
Dr. Coulibaly contends that he responded to Mr. Atayi’s directives about Dr. Coulibaly’s
political statements by explaining that, because of his contractor status, Dr. Coulibaly “was free
to give interviews after his work at FSI . . . because there was no rule or policy preventing him
[from] do[ing] that.” Id. ¶ 66. He further explained that he “never mentioned his work at [the]
State Department in any of his interviews or article[s].” Id. ¶ 67. In response to Micha’s
comments, Dr. Coulibaly states that he noted how “he ha[d] been working since 1999 for [the]
State Department as [a] contractor” and how his statements outside of work had “never created
any political tension” between the United States and the Ivory Coast. Id. ¶ 58. Dr. Coulibaly
4
also states that Mr. Atayi later “admitted that [Dr. Coulibaly] was right” about his ability to make
political statements if he did not mention his work at the Department of State. Id. ¶ 67.
Efforts to Become an FSI Employee
Concurrently with Dr. Coulibaly’s discussions with Mr. Atayi and Micha, Dr. Coulibaly
alleges that FSI was preparing to hire him as an employee—but that Mr. Atayi ruined
Dr. Coulibaly’s chances. See Compl. ¶¶ 54–67, 79–80. Dr. Coulibaly alleges that, in 2007,
FSI’s “hiring of teachers was based on seniority.” Id. ¶ 50 (emphasis omitted). For that reason,
Dr. Coulibaly contends that “it was his turn to become [a] direct-hire [employee]” in 2007. Id.
In support, Dr. Coulibaly asserts that FSI’s Associate Dean James North asked Dr. Coulibaly if
he would accept a direct-hire position, and that Dr. Coulibaly responded in the affirmative. Id.
¶¶ 50–51. Dr. Coulibaly therefore “expecte[d] his appointment by Associate Dean James North
sometime[] soon after this conversation.” Id. ¶ 51.
Indeed, the record indicates that, on June 15, 2007, the FSI human resources department
created the position description for a French language teaching position, which at some point in
2007 or thereafter had Dr. Coulibaly’s name on it. See id. ¶¶ 41–43; Duckett Decl. ¶¶ 1–2,
Defs.’ Facts Ex. Z, ECF No. 30-26; Position Description, Defs.’ Facts Ex. F, ECF No. 30-6
(reproducing the position description, which was signed by both Associate Dean North and an
FSI human resources officer on June 15, 2007). But Dr. Coulibaly did not become an FSI
employee until 2011. See Compl. ¶¶ 43, 80; Defs.’ Facts ¶ 4. To justify the gap in time, an FSI
human resources officer explains that the position description “was classified” on June 15,
2007—meaning that it was a “standard” position description to which other individuals besides
Dr. Coulibaly could also have been assigned. See Compl. ¶¶ 41, 44; Duckett Decl. ¶ 2. Thus,
she states, “[u]pon [Dr.] Coulibaly’s appointment in 2011, a copy of the Position Description
5
was made and [Dr.] Coulibaly’s name was written into Box 17,” which FSI originally left blank.
Duckett Decl. ¶¶ 3, 5; see Position Description (showing Dr. Coulibaly’s name in Box 17).
Dr. Coulibaly disputes FSI’s explanation. See Compl. ¶¶ 42–54, 79–80. He points to
what he views to be several flaws in the explanation: (1) both Associate Dean North and the FSI
human resources officer had already signed the position description on June 15, 2007, id. ¶ 43;
(2) other FSI employees did not have the date June 15, 2007 in their hiring documents and had
never heard of the practice of copying a position description, id.; and (3) Dr. Coulibaly never
received the June 15, 2007 position description when Dr. Coulibaly became an FSI employee in
2011, which he views as evidence of “active concealment and intentional non-disclosure,” id.
¶¶ 47, 51.
Rejecting FSI’s explanation, Dr. Coulibaly posits a different explanation for the gap in
time between the 2007 date of the position description and his 2011 appointment as an FSI
employee. See id. ¶¶ 54–67, 79–80. Dr. Coulibaly claims that his supervisor, Mr. Atayi, used
Dr. Coulibaly’s political statements as a pretext to hire another employee in Dr. Coulibaly’s
stead. See id. ¶¶ 55, 62–68, 79–80; see supra Part II.A.2 (discussing Dr. Coulibaly’s
conversations with Mr. Atayi about political statements that Dr. Coulibaly made in his private
capacity). According to Dr. Coulibaly, Mr. Atayi “wanted to hire as soon as possible another
teacher,” Frederic Hegbe, who shared Mr. Atayi’s country of origin (Togo). Compl. ¶ 55.
Because Mr. Hegbe purportedly possessed less seniority, less experience, and less education than
Dr. Coulibaly, Mr. Atayi had to “obstruct[] . . . [Dr. Coulibaly’s] appointment by using
pretext[ual reasons].” Id. Dr. Coulibaly contends that, to that end, Mr. Atayi “avoided
presenting” Dr. Coulibaly with the June 15, 2007 position description because he knew that
Dr. Coulibaly was expecting the appointment and “would have accepted the hiring.” Id. ¶ 64.
6
Dr. Coulibaly buttresses his claims of wrongdoing on Mr. Atayi’s part by detailing ways
in which Mr. Atayi allegedly created a “hostile work environment,” perhaps because he was
envious of Dr. Coulibaly’s education and communications with journalists. See id. ¶¶ 54, 65, 68,
73–75. According to Dr. Coulibaly, Mr. Atayi would “constantly call [Dr. Coulibaly] to order
him to go buy [Mr. Atayi’s] monthly parking permit . . . , just to show he was the boss.” Id. ¶ 74.
Dr. Coulibaly further alleges that Mr. Atayi made him beg for his contract renewal each year. Id.
¶¶ 74–75. And Mr. Atayi had purportedly told him that “if [he] want[ed] to be [a] direct hire,
[he] just need[ed] to have an affair with Dr. Jane Kamide,” the head of FSI’s French section
before Mr. Atayi. Id. ¶ 73.
Alleged Workplace Violence
Dr. Coulibaly alleges that two years later, on March 26, 2009, he was “a victim of
workplace violence.” Notice of Right to File a Discrimination Complaint ¶ 3, Defs.’ Facts
Ex. JJ, ECF No. 30-36 (describing Dr. Coulibaly’s allegation); see also Compl. ¶ 158; Notice of
Dismissed Allegations, Defs.’ Facts Ex. II, at 6, ECF No. 30-35.2 He claims that, after he
informed his then-supervisors about the incident, “[t]hey ignored his claim and did nothing.”
Notice of Right to File a Discrimination Complaint ¶ 3. Dr. Coulibaly allegedly then “went to
Diplomatic Security” to report the incident, but also received no redress from that source:
another FSI manager, Debra Blake, purportedly told him that “this investigation must be closed.”
Id. (internal quotation mark omitted).
Although Ms. Blake allegedly assured Dr. Coulibaly that “there [would] be no
retaliation” against him, Dr. Coulibaly claims that he felt “hostility” against him on the part of
2
Because the pagination of Defendants’ Exhibit II does not run consecutively, the Court
cites to the page numbers automatically generated by ECF.
7
FSI management. Id. Indeed, Dr. Coulibaly claims that Ms. Blake told him that “he was lucky
he didn’t lose his job after contacting Diplomatic Security,” “warned him to not file [any more]
complaint[s] against [FSI] management,” and said that, if he did, “he would lose his job.”
Compl. ¶ 161. Accordingly, Dr. Coulibaly claims that “was not aware of his rights and was in
fear of [losing] his job,” so he did not timely bring the workplace violence incident—which he
later alleged to be discriminatory—to the attention of the Department of State’s Office of Civil
Rights. Id.; see Notice of Dismissed Allegations, at 6–7, ECF No. 30-35 (dismissing
Dr. Coulibaly’s 2009 allegations, which he later asserted before the Office of Civil Rights,
because he did not bring them “within 45 calendar days from the date of the matter alleged to be
discriminatory”).
Further Efforts to Become an FSI Employee
Dr. Coulibaly believes that, because he contacted Diplomatic Security, FSI declined to
hire him as an employee in June 2009, even though he was “clearly the best candidate.” Notice
of Right to File a Discrimination Complaint ¶ 3; see also Compl. ¶ 158. He further contends
that, at the end of the 2009 hiring process, FSI was considering “two candidates for two
position[s].” Compl. ¶ 158. He reports that, even though Dr. Coulibaly was one of the
candidates, FSI hired only the other candidate, who had “less education and less training”; FSI
“decided to close the other position” and declined to hire Dr. Coulibaly. Id. As with the
workplace violence incident, Dr. Coulibaly later claimed that FSI’s failure to hire him was
discriminatory, but he claims that he did not timely bring the failure to hire to the attention of the
Office of Civil Rights because he “was in fear of [losing] his job.” Compl. ¶ 161; see Notice of
Dismissed Allegations, at 6–7, ECF No. 30-35 (dismissing both of Dr. Coulibaly’s allegations
arising from 2009 events).
8
B. Employment as an FSI Employee (2011-2012)
Employment Status
On June 19, 2011, FSI at last hired Dr. Coulibaly as an employee. See Compl. ¶¶ 46,
121; Notification of Personnel Action, Defs.’ Facts Ex. C, ECF No. 30-3 (showing that
Dr. Coulibaly began working as a Department of State employee on June 19, 2011).
Dr. Coulibaly’s appointment as an employee was for a term of two years, which included a
one-year trial period. See Notification of Personnel Action (noting Dr. Coulibaly’s temporary
appointment and one-year trial period); Statement of Understanding, Defs.’ Facts Ex. E, ECF
No. 30-5 (noting Dr. Coulibaly’s two-year appointment). Upon his hire, Dr. Coulibaly signed a
statement of understanding, thereby accepting that he could “be terminated at any time
depending on the needs of the [Department of State].” See Statement of Understanding.
As a Language and Culture Instructor (or, officially, a “Training Instructor”),
Dr. Coulibaly’s major duties included “teaching speaking, reading, listening comprehension and
writing . . . skills to a full range of students” and “provid[ing] major substantive input for the
planning, design, development and evaluation of the course content.” Position Description,
Defs.’ Facts Ex. F, at 3–4, ECF No. 30-6.3 During Dr. Coulibaly’s employment at FSI, as
before, James North served as FSI’s Associate Dean. See North Aff. ¶¶ Q1, Q3, Defs.’ Facts
Ex. G, ECF No. 30-7. When Dr. Coulibaly first began working as an employee, Language
Training Supervisor (LTS) Laura Fyfe, who is white and from the United States, served as
Dr. Coulibaly’s first-line supervisor. See Fyfe Aff. ¶¶ Q1, Q3–Q6, Q46, Defs.’ Facts Ex. H, ECF
No. 30-8. Starting in January 2012, LTS Phillipe Casteuble, who is white and from France,
3
Because the Position Description is not consecutively paginated throughout, the Court
cites to the page numbers automatically generated by ECF.
9
served as Dr. Coulibaly’s new first-line supervisor. See Casteuble Aff. ¶¶ Q1, Q3–Q6, Defs.’
Facts Ex. J, ECF No. 30-10.
Alleged Preferential Treatment Toward Colleague
The same day that Dr. Coulibaly began working as an FSI employee, he alleges that FSI
also hired Aitmouloud Ahmed Hmimiche, who Dr. Coulibaly asserts was FSI Division Director
Debra Blake’s “boyfriend.” Compl. ¶ 121.4 Dr. Coulibaly alleges that he complained about
favoritism that FSI showed toward Mr. Hmimiche, but that his action resulted in Director Blake
becoming “mad” and “very agitated.” Id. Dr. Coulibaly contends that Director Blake’s
emotional response was a motive for later retaliation and adverse actions taken against
Dr. Coulibaly. See id.
Other employees in FSI’s French section shared Dr. Coulibaly’s views about Director
Blake and Mr. Hmimiche. For instance, another French teacher, Paulette De Launay-Fogg,
exactly corroborated Dr. Coulibaly’s views. See EEO Investigation Report at 34–35, ECF
No. 36-3 (summarizing the affidavit that Ms. De Launay-Fogg completed for the EEO
investigation); 5 see also De Launay-Fogg Aff., EEO Investigation Report at 1374–76, Coulibaly
v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (reproducing Ms. De Launay-
Fogg’s affidavit).6 She states that Dr. Coulibaly and Mr. Hmimiche became employees on the
4
The Court uses the written name for Mr. Hmimiche that Dr. Coulibaly uses in his
complaint. See Compl. ¶ 121.
5
Because the initial exhibits appended to Dr. Coulibaly’s opposition brief are not
consecutively paginated, the Court also includes the page number automatically generated by
ECF.
6
In Dr. Coulibaly’s related case before this Court, defendants in that case have filed the
complete EEO Investigation Report generated in response to Dr. Coulibaly’s December 20, 2011
allegations. Compare EEO Investigation Report, ECF Nos. 36-3, 36-4 (reproducing just pages
1–227 and 742–970 of the report), with EEO Investigation Report, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF Nos. 26-1 to -12 (reproducing the entire 1418-page
report). The Court takes judicial notice of publicly filed documents in related litigation. See
10
same day, but that they “were treated very differently.” De Launay-Fogg Aff. ¶ Q6, EEO
Investigation Report at 1375. Mr. Himiche’s preferential treatment, she asserted, arose from the
fact that he and Director Blake were a “couple,” a fact that Ms. De Launay-Fogg contends was
“common knowledge” at FSI. Id. She asserts that she saw Director Blake “caressing”
Mr. Hmimiche’s neck, that Mr. Hmimiche was “always running into [Director Blake’s] office,”
and that “[m]any times, they were seen . . . leaving the school together.” Id.
Likewise, learning consultant Fatima Smith stated that “it was evident that [Director]
Blake had developed an intimate and seemingly romantic relationship with Mr. Hmimiche” and
that Mr. Hmimiche “clear[ly] received preferential treatment from [Director] Blake and [LTS]
Fyfe.” Smith Aff. ¶ Q6, EEO Investigation Report at 1365, Coulibaly v. Kerry, No. 14-0712
(D.D.C. Mar. 4, 2016), ECF No. 26-12. Ms. Smith emphasized how Mr. Hmimiche’s
qualifications were inferior to Dr. Coulibaly’s: “Whereas Dr[.] Coulibaly is highly qualified with
a Ph[.D] and . . . is a seasoned French language teacher with many many years of experience,
Mr. Hmimiche does not have the education or the teaching experience comparable to Dr[.]
Coulibaly’s.” Id. Yet, Ms. Smith observed, “Mr. Hmimiche’s teaching approach was never
questioned by either [LTS] Fyfe or [Director] Blake,” and Mr. Hmimiche later received tenure as
an FSI instructor. Id.
Evidence indicates that, at one point, Dr. Coulibaly complained to LTS Fyfe about a
change in his teaching schedule and accused FSI management of changing the schedule to
accommodate Mr. Hmimiche. See Lauterbach Aff. ¶ Q6, EEO Investigation Report at 1360,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (discussing an email
Lewis v. Drug Enf’t Admin., 777 F. Supp. 2d 151, 159 (D.D.C. 2011) (citing Covad Commc’ns
Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005)) (“The court may take judicial
notice of public records from other court proceedings.”).
11
LTS Fyfe sent in response to the complaint). And Dr. Coulibaly’s former colleague, language
instructor Marie-Paule Lauterbach, shared an office space with him and asserts that she saw an
email in which LTS Fyfe responded to Dr. Coulibaly’s complaint and criticized him by calling
him by the pejorative term “bean counter.” Id. ¶¶ Q1, Q6, EEO Investigation Report at 1359–60.
The email was supposedly “recalled almost immediately after [Dr. Coulibaly] had received it and
after he had shown it to [Ms. Lauterbach].” Id.
Conflict with Supervisor Laura Fyfe
Meanwhile, Dr. Coulibaly and his initial FSI supervisor, LTS Fyfe, began to experience
conflict over expectations for Dr. Coulibaly’s job responsibilities. LTS Fyfe recounts that, after
establishing Dr. Coulibaly’s “work commitments” on June 20, 2011, she met with Dr. Coulibaly
on July 8, 2011 for a performance discussion. Email from Laura Fyfe (Nov. 7, 2011), EEO
Investigation Report at 721, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF
No. 26-7. LTS Fyfe states that, during the discussion, she recommended that Dr. Coulibaly
“work on his teaching portfolio by developing a specific skill since he [didn’t] have pedagogical
training.” Id. To that end, LTS Fyfe states that she suggested that Dr. Coulibaly develop a
“reading lesson plan.” Id. In a later meeting, the record indicates that LTS Fyfe suggested that
the lesson plan goal was “based on student feedback that he was teaching without a lesson plan.”
Email from Ann Keller-Lally (Nov. 9, 2011), EEO Investigation Report at 93, ECF No. 36-3.
Throughout the rest of 2011, LTS Fyfe and Dr. Coulibaly continued to experience
friction, though LTS Fyfe felt that their issues merely arose because “she [was] telling
[Dr. Coulibaly] things that he [didn’t] want to hear.” Id. LTS Fyfe reports that in advance of a
planned observation of Dr. Coulibaly’s class the following month, she requested class readings
from Dr. Coulibaly. Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 721
12
(noting LTS Fyfe’s message to Dr. Coulibaly on August 12, 2011). According to LTS Fyfe,
Dr. Coulibaly responded by stating that he felt that his students were not yet ready to read. See
id. (“He replied that his students were only in week 6, so he was not doing reading with them.”).
LTS Fyfe later opined that the reading delay was “out of the ordinary” in the French section,
where she stated that “teachers begin teaching reading starting in the first week with A level texts
varying from advertisements to menus.” Id.
According to LTS Fyfe, she observed Dr. Coulibaly’s class, as planned, on August 18,
2011. Id. She followed up with Dr. Coulibaly by email later that day and the next day. Id. at
721–22.7 In her August 19, 2011 email, LTS Fyfe told Dr. Coulibaly to “prepare a reading
lesson” for his class based on “the four P’s” method. See Email from Laura Fyfe to Tiemoko
Coulibaly (Aug. 19, 2011), EEO Investigation Report at 733, Coulibaly v. Kerry, No. 14-0712
(D.D.C. Mar. 4, 2016), ECF No. 26-7.
Five days later, on August 24, 2011, Dr. Coulibaly submitted his reading lesson plan to
LTS Fyfe.8 LTS Fyfe later characterized Dr. Coulibaly’s lesson plan as “a template for writing a
lesson plan—not an actual lesson plan.” Email from Laura Fyfe (Nov. 7, 2011), EEO
Investigation Report at 722. LTS Fyfe states that she told Dr. Coulibaly during the following
week that the plan was “a beginning” and then asked Dr. Coulibaly to make improvements—
namely, to include a specific article for reading and to “address some of the specifics of the
7
See Email from Laura Fyfe to Tiemoko Coulibaly (Aug. 18, 2011), EEO Investigation
Report at 734, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7; Email
from Laura Fyfe to Tiemoko Coulibaly (Aug. 19, 2011), EEO Investigation Report at 733,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
8
See Email from Tiemoko Coulibaly to Laura Fyfe (Aug. 24, 2011), EEO Investigation
Report at 732–33, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7; see
also Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 722 (reproducing what
LTS Fyfe alleges was the document that Dr. Coulibaly sent her).
13
article and the timing and level of the lesson.” See id. at 721–23 (reproducing an email from
August 30, 2011). According to LTS Fyfe, Dr. Coulibaly responded later that day and requested
clarification about whether his lesson plan was satisfactory. See id. at 723 (“I would be grateful
if you could tell me if this ‘beginning’ is appropriate or not for you, if it is good or not, so I could
try to improve it.”). LTS Fyfe claims that she responded to Dr. Coulibaly’s request by giving
him “specific questions.” See id.
LTS Fyfe states that she again requested a reading lesson plan more than a month later,
on October 3, 2011. Id. Two days later, Dr. Coulibaly responded by forwarding LTS Fyfe the
lesson plan that he had previously sent her in August. See Email from Tiemoko Coulibaly to
Laura Fyfe (Oct. 5, 2011, 8:55 AM), EEO Investigation Report at 732–33, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7. LTS Fyfe then clarified that she found the
August lesson plan to be unsatisfactory. See Email from Laura Fyfe to Tiemoko Coulibaly (Oct.
5, 2011), EEO Investigation Report at 732, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4,
2016), ECF No. 26-7 (“[W]hen I wrote, ‘this is a beginning,’ I was suggesting that [the August
lesson plan was] not complete and [that] it needed to be revised.” (emphasis in original)). In
response, Dr. Coulibaly expressed that he was “confused and unclear about what to do exactly”
and stated that he “would appreciate” a time to meet with LTS Fyfe for clarification. See Email
from Tiemoko Coulibaly to Laura Fyfe (Oct. 5, 2011, 12:36 PM), EEO Investigation Report at
731–32, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
LTS Fyfe states that she attempted to meet with Dr. Coulibaly on October 12, 2011, but
that she “made a mistake about his teaching schedule,” so no meeting occurred. See Email from
Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 724. LTS Fyfe asserts that, instead, she
delegated the matter to another FSI employee, Dora Chanesman. See id.; Email from Laura Fyfe
14
to Tiemoko Coulibaly (Nov. 4, 2011), EEO Investigation Report at 731, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
The next month, on November 4, 2011, LTS Fyfe contacted Dr. Coulibaly again about
the reading lesson plan and wrote that “[s]ince [she and Dr. Coulibaly had] not been able to set
up a time to go over writing a lesson plan, [she had] asked Dora Chanesman [to] assist [him]
with the process.” Email from Laura Fyfe to Tiemoko Coulibaly (Nov. 4, 2011, 9:57 AM), EEO
Investigation Report at 731. Dr. Coulibaly responded later that day with his interpretation of
LTS Fyfe’s message: “This suggests in my mind that I have refused or I have rejected to ‘set up
a time to go over writing a lesson plan.’” Email from Tiemoko Coulibaly to Laura Fyfe (Nov. 4,
2011, 7:11 PM), EEO Investigation Report at 728, Coulibaly v. Kerry, No. 14-0712 (D.D.C.
Mar. 4, 2016), ECF No. 26-7. Disputing the idea that he was at fault for their inability to meet,
Dr. Coulibaly emphasized that he had “never refused to meet with [LTS Fyfe] and [that he had]
never refused to do what [she] requested.” Id.
Communications with Second-Line Supervisors
A few days later, on November 7, 2011, Dr. Coulibaly wrote to Acting Division Director
Ann Keller-Lally and expressed that he was “feeling hostility” from LTS Fyfe, that he believed
he was “a victim of psychological abuse, retaliation and discrimination,” and that “this is a case
of intentional and negligent infliction of emotional distress to an employee.” Email from
Tiemoko Coulibaly to Ann Keller-Lally (Nov. 7, 2011), EEO Investigation Report at 727,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7. In response, Acting
Director Keller-Lally provided Dr. Coulibaly with the procedures to report alleged
discrimination, but she also suggested a face-to-face meeting with Dr. Coulibaly and with
LTS Fyfe to discuss the conflict. Email from Ann Keller-Lally to Tiemoko Coulibaly (Nov. 7,
15
2011, 5:01 PM), EEO Investigation Report at 725–26, Coulibaly v. Kerry, No. 14-0712 (D.D.C.
Mar. 4, 2016), ECF No. 26-7.
That meeting occurred the next day, on November 8, 2011. See Email from Ann
Keller-Lally (Nov. 9, 2011), EEO Investigation Report at 754–56, ECF No. 36-3 (memorializing
the conversation from the meeting in writing). During the meeting, Acting Director
Keller-Lally’s notes indicate that she met with both LTS Fyfe and Dr. Coulibaly, that
Dr. Coulibaly expressed his confusion with respect to LTS Fyfe’s instructions, and that LTS Fyfe
felt that her instructions were clear. See id. at 754–55. In particular, Acting Director
Keller-Lally’s notes indicate that Dr. Coulibaly found LTS Fyfe’s “four P’s” method confusing,
because another colleague had told Dr. Coulibaly that the method “was not particularly
applicable with regard to reading lessons.” Id. at 754. According to Acting Director
Keller-Lally’s notes, LTS Fyfe acknowledged “[l]ater in the meeting” that Dr. Coulibaly was
“rightly confused.” Id. Apart from the “four P’s” method, Dr. Coulibaly also reportedly
expressed that he felt “hostility” from LTS Fyfe, and that “he was sure whatever he proposed
would be rejected.” Id. at 754–55. In response, LTS Fyfe reportedly stated that her goal was to
help Dr. Coulibaly to “do the best he could” and felt that she had simply “said some things that
[Dr. Coulibaly] did not want to hear.” Id. at 756. According to Acting Director Kellar-Lally’s
notes, LTS Fyfe ultimately “offered to drop the reading lesson plan project,” and instead
requested that Dr. Coulibaly attend formal trainings. Id. at 755–56.
The next day, Acting Director Keller-Lally sent her notes documenting the meeting to
LTS Fyfe and Dr. Coulibaly. See generally id. at 754–56. She told LTS Fyfe and Dr. Coulibaly
to “[p]lease feel free to respond with any remarks or corrections based on [their] recollection of
what we discussed.” Id. at 754. The following week, on November 15, 2011, Dr. Coulibaly
16
provided voluminous comments in response to Acting Director Keller-Lally’s notes. See Email
from Tiemoko Coulibaly (Nov. 15, 2011), EEO Investigation Report at 743–49, ECF No. 36-3.
Dr. Coulibaly’s response alleged that, during the meeting, LTS Fyfe had accused him of
“‘discrimination’ ‘against’ her because of her ‘background’ and because her ‘former husband’
was ‘Ivorian’ (like [Dr. Coulibaly]).” Id. at 744; see also id. at 748 (alluding to a point during
the meeting in which LTS Fyfe “became very emotional and . . . started crying,” and in which
she mentioned the Ivory Coast “and her former husband, an [Ivorian]”). His response also
accused LTS Fyfe of “knowingly and intentionally act[ing] . . . in bad faith to create false
excuses to . . . punish [Dr. Coulibaly],” of “retaliation,” and of “character assassination.” Id. at
745–46. Reacting to Dr. Coulibaly’s comments, LTS Fyfe asserted that there was “no basis for
his [accusations],” though she admitted that she “was brought to tears” and “did ask
[Dr. Coulibaly] if he had an ax to grind against [her] because of [her] ex.” Email from Laura
Fyfe to Debra Blake (Nov. 15, 2011), EEO Investigation Report at 743, ECF No. 36-3.
The record indicates that, meanwhile, on November 9, 2011, Dr. Coulibaly had requested
a change in supervisor. See Blake Aff. ¶ Q15, Defs.’ Facts Ex. D, ECF No. 30-4 (“On 11/9/11
[Dr. Coulibaly] first made a request for a new [s]upervisor.”). FSI management appears to have
decided to delay any change of supervisor because only two months remained in the reporting
period; and, a change would have left any new supervisor without adequate observation time
before year-end performance ratings. See id.; Keller-Lally Aff. ¶ Q15, Defs.’ Facts Ex. KK, ECF
No. 30-37.
On November 16, 2011, the day after Dr. Coulibaly and LTS Fyfe responded to Acting
Director Keller-Lally’s notes, Division Director Debra Blake, having returned to the office, met
with Dr. Coulibaly to address his accusations. See Blake Mem. (Nov. 15, 2011), EEO
17
Investigation Report at 773–74, ECF No. 36-4.9 In her notes documenting this conversation,
Director Blake claimed that her purpose in calling the meeting was to determine “precisely what
actions” Dr. Coulibaly felt were evidence of LTS Fyfe’s “discrimination and hostility.” Id. at
773. According to Director Blake, Dr. Coulibaly was initially “reluctant” to articulate specific
allegations of discrimination and hostility, but he then cited the fact that LTS Fyfe’s “former
husband shared the same country of origin” as Dr. Coulibaly, as well as allegations that
LTS Fyfe treated Dr. Coulibaly unfairly in the way that she supervised him. See id. Director
Blake shared her notes of the meeting with Dr. Coulibaly the next week. See Email from Debra
Blake to Tiemoko Coulibaly (Nov. 22, 2011), EEO Investigation Report at 764–65, ECF No. 36-
3.
The day after Dr. Coulibaly received Director Blake’s notes, Dr. Coulibaly responded
with lengthy comments that expressed his views on the conversation. See Email from Tiemoko
Coulibaly (Nov. 23, 2011), EEO Investigation Report at 764, ECF No. 36-3; Coulibaly Mem.
(Nov. 23, 2011), EEO Investigation Report at 766–72, ECF No. 36-4. In his comments,
Dr. Coulibaly repeatedly expressed that he believed that Director Blake was “simply trying to
protect” LTS Fyfe: he wrote that Director Blake “had already decided to totally support”
LTS Fyfe and had become “a zealous lawyer” for LTS Fyfe during the meeting. See Coulibaly
Mem. (Nov. 23, 2011), EEO Investigation Report at 766–72.
9
Director Blake actually dated her memorandum November 15, 2011, see Blake Mem.
(Nov. 15, 2011), EEO Investigation Report at 773–74, but, as Dr. Coulibaly noted in his
response to Director Blake’s memorandum, the meeting in fact took place on November 16,
2011, see Coulibaly Mem. (Nov. 23, 2011), EEO Investigation Report at 766, ECF No. 36-4.
See also Email from Debra Blake to Laura Fyfe (Nov. 16, 2011), EEO Investigation Report at
757, ECF No. 36-3 (stating that Director Blake intended to meet with Dr. Coulibaly that day).
18
That same day, Director Blake met with both Dr. Coulibaly and LTS Fyfe to facilitate
their working relationship going forwarded. See Email from Laura Fyfe (Nov. 23, 2011,
3:12 PM), EEO Investigation Report at 761–62, ECF No. 36-3 (memorializing the meeting). At
the meeting, LTS Fyfe reports that she told Dr. Coulibaly that “the administration ha[d] ruled”
that she would continue as Dr. Coulibaly’s supervisor, even though he had requested a change in
supervisor. Id. at 762. LTS Fyfe states that she also expressed “her willingness to move forward
in the supervisory role” and that she and Dr. Coulibaly “both agreed to work productively with
each other.” Id. Dr. Coulibaly later emailed LTS Fyfe to clarify the procedure for changing
supervisors. See Email from Tiemoko Coulibaly (Nov. 23, 2011, 4:35 PM), EEO Investigation
Report at 761, ECF No. 36-4. LTS Fyfe responded by informing Dr. Coulibaly that “[t]he
decision was made to keep [her] as [his] supervisor until at least the end of this year (December
31, 2011)” and that she had “not received approval to change [his] supervisor . . . after that
point.” Email from Laura Fyfe (Nov. 23, 2011, 5:33 PM), EEO Investigation Report at 761,
ECF No. 36-3.
A few weeks later, on December 14, 2011, Director Blake and LTS Fyfe met again with
Dr. Coulibaly to address a new point of contention: his alleged failure to submit required weekly
syllabi for a period of three weeks.10 According to Director Blake, Dr. Coulibaly acknowledged
that he had not submitted the weekly syllabi, but claimed that he had been too busy. Blake Mem.
(Dec. 14, 2011), EEO Investigation Report at 787, ECF No. 36-4. Director Blake further reports
that Dr. Coulibaly continued to allege that “he felt discriminated against and felt he was being
treated unfairly,” particularly when compared to “one other instructor who entered on duty on
10
See Email from Debra Blake (Dec. 15, 2011), EEO Investigation Report at 786, ECF
No. 36-4 (noting the meeting that took place the day before); Blake Mem. (Dec. 14, 2011), EEO
Investigation Report at 787, ECF No. 36-4.
19
the same date.” Id. Dr. Coulibaly commented the next day that, at their meeting, he had “clearly
insisted on the issue of discrimination” and that he had noted “the different standards between
teacher Hmimiche AitMouloud (‘Mimiche’)” and himself. Email from Tiemoko Coulibaly (Dec.
15, 2011), EEO Investigation Report at 785–86, ECF No. 36-4. Dr. Coulibaly also states that he
had questioned whether Mr. Hmimiche had been held to the syllabus requirement. Id.
EEO Complaint
Around the time that he was communicating with Director Blake, Dr. Coulibaly made
contact with the Department of State’s Office of Civil Rights and filed an informal Equal
Employment Opportunity (“EEO”) complaint.11 Dr. Coulibaly filed a formal EEO complaint on
December 20, 2011. See Compl. ¶ 95; Formal Compl. of Discrimination, EEO Investigation
Report at 62–63, ECF No. 36-3. The complaint alleged that FSI management had discriminated
against Dr. Coulibaly on the basis of race, color, and national origin and had committed
“reprisal” against him. See Formal Compl. of Discrimination, EEO Investigation Report at
62–64, ECF No. 36-3. The complaint brought up issues relating both to Dr. Coulibaly’s recent
conflicts with his supervisors and to Dr. Coulibaly’s allegations relating to events in 2009. See
id. at 64; see also supra Part II.A.4–5 (discussing events Dr. Coulibaly alleges occurred in 2009).
The Office of Civil Rights filed Dr. Coulibaly’s complaint under EEO Case Number
DOS-F-025-12. See Letter from Jacqueline Canton to Tiemoko Coulibaly, EEO Investigation
Report at 58, ECF No. 36-3.
11
See Compl. ¶ 95 (stating that Dr. Coulibaly filed an informal EEO complaint on
November 23, 2011); EEO Counselor’s Report, EEO Investigation Report at 68–73, ECF
No. 36-3 (showing that Dr. Coulibaly made contact with an EEO Counselor at the Department of
State on November 18, 2011); Email from Debra Blake (Nov. 28, 2011), EEO Investigation
Report at 776, ECF No. 36-4 (discussing “the EEO complaint filed by Tiemoko Coulibaly last
week”).
20
Performance Appraisal Report
Later in December 2011, Dr. Coulibaly received a Performance Appraisal Report
(“PAR”) from LTS Fyfe that noted “several issues” with Dr. Coulibaly’s performance.12
LTS Fyfe noted that Dr. Coulibaly was “continu[ing] to attempt to repair” his performance with
respect to those issues. PAR Report by Laura Fyfe, EEO Investigation Report at 790, ECF
No. 36-4.
In response, Dr. Coulibaly sent an email to Director Blake, LTS Fyfe, and others in FSI
management, in which he alleged that the PAR was “evidence of retaliation” and that Director
Blake and LTS Fyfe could not “separate performance evaluation from discrimination and
retaliation against” Dr. Coulibaly. Email from Tiemoko Coulibaly (Dec. 27, 2011), EEO
Investigation Report at 788–89, ECF No. 36-4. Dr. Coulibaly’s email accused his supervisors of
omitting “the important issues of discrimination and retaliation” in the PAR, given that,
according to Dr. Coulibaly, “these disputes clearly influenced [their] performance report.” Id. at
789.
Director Blake responded by telling Dr. Coulibaly that he should pursue his
discrimination allegations “through the proper channels” and that LTS Fyfe, as his supervisor,
“reported on [his] performance as required.” Email from Debra Blake to Tiemoko Coulibaly
(Dec. 28, 2011), EEO Investigation Report at 795–96, ECF No. 36-4. She also stated that
Dr. Coulibaly had “been repeatedly instructed to refrain from this line of accusations” while
discussing his work performance. Id. She opined that, therefore, his continued accusations were
“tantamount to insubordination.” Id. Continuing his disagreement with Director Blake,
12
See Email from Tiemoko Coulibaly (Dec. 27, 2011), EEO Investigation Report at
788–89, ECF No. 36-4; see also PAR Report by Laura Fyfe, EEO Investigation Report at 790,
ECF No. 36-4 (discussing Dr. Coulibaly’s lesson plans and weekly syllabi).
21
Dr. Coulibaly responded by stating that “[t]here is no insubordination when a teacher denounces
discrimination and retaliation,” and he reiterated that the PAR “was simply discrimination and
retaliation.” Email from Tiemoko Coulibaly to Debra Blake (Dec. 28, 2011, 4:09 PM), EEO
Investigation Report at 795, ECF No. 36-4. In this vein, Dr. Coulibaly alleged that Director
Blake and LTS Fyfe viewed Dr. Coulibaly as “their target” and did not require other teachers—
such as Mr. Hmimiche—to submit syllabi in order to fulfill job responsibilities. Email from
Timoko Coulibaly to Debra Blake (Dec. 28, 2011, 3:55 PM), EEO Investigation Report at
96–97, ECF No. 36-3 (emphasis omitted).
Event for FSI’s French Language and Culture Instructors
The next day, on December 29, 2011, Dr. Coulibaly attended an event for FSI’s French
Language and Culture instructors. See Casteuble Mem. (Jan. 24, 2012), EEO Investigation
Report at 815, ECF No. 36-4; see also Cazeau Aff., EEO Investigation Report at 1339–40,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12. Evidence in the record
shows different views regarding the purpose of the meeting and the nature of Dr. Coulibaly’s
actions during the meeting.
Defendants adopt the position taken in a memorandum written by LTS Phillipe
Casteuble, who stated that the meeting was a “training workshop provided to all French
Language and Culture Instructors” about “specifications for writing the weekly syllabi.”
Casteuble Mem. (Jan. 24, 2012), EEO Investigation Report at 815; see also Defs.’ Facts
¶¶ 17–21 (adopting LTS Casteuble’s view). LTS Casteuble’s memorandum also accuses
Dr. Coulibaly of “inappropriate conduct” and comments that “were off topic” during the
meeting: Dr. Coulibaly allegedly “stood up and loudly began to speak about the ‘No Fear Act’
and discrimination and retaliation against [him] on the part of the French Supervisors,” and he
22
allegedly “continued to stand up and loudly protest” despite LTS Casteuble’s request for
Dr. Coulibaly to sit down. Casteuble Mem. (Jan. 24, 2012), EEO Investigation Report at 815.
But Dr. Coulibaly’s colleague, Elder Cazeau, took a different view of the meeting.
Mr. Cazeau recalls that the meeting was merely a “section meeting that had been organized to
discuss lesson plans.” Cazeau Aff., EEO Investigation Report at 1339. Mr. Cazeau also
recounts that Dr. Coulibaly “was publicly humiliated and silenced by his supervisor who told
him that he could not use the meeting as a platform to air his personal issues.” Id. at 1339–40.
In particular, Mr. Cazeau states that “Dr. Coulibaly started saying that he felt discriminated
against because of his lesson plan,” that Dr. Coulibaly’s supervisor “cut him off,” and that
“Dr. Coulibaly remained silent” after that. Id. at 1440.
Conflict with New Supervisor Philippe Casteuble
In January 2012, LTS Casteuble replaced LTS Fyfe as Dr. Coulibaly’s supervisor. See
Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813–14, ECF
No. 36-4 (indicating that LTS Casteuble’s first day as Dr. Coulibaly’s new supervisor was on
January 24, 2012); Casteuble Aff. ¶ Q3, Defs.’ Facts Ex. J, ECF No. 30-10 (indicating that
Dr. Coulibaly started reporting to LTS Casteuble in January 2012). On January 24, 2012,
LTS Casteuble met with Dr. Coulibaly with the expressed intention of “talk[ing] about
expectations.” See Email from Philippe Casteuble to Tiemoko Coulibaly (Jan. 23, 2012), EEO
Investigation Report at 814, ECF No. 36-4.13 But, during the meeting, LTS Casteuble presented
Dr. Coulibaly with a memorandum that outlined an “informal counseling session” regarding
Dr. Coulibaly’s conduct at the December 29, 2011 meeting and that reprimanded him for his
13
See Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at
813–14 (indicating that their meeting occurred on January 24, 2012).
23
conduct at that meeting.14 LTS Casteuble’s memorandum surprised Dr. Coulibaly, who had
believed that the January 24 meeting “was only about expectations on teaching.” Email from
Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813–14. Dr. Coulibaly was
further surprised by the fact that a human resources representative was present for the meeting.15
That same day, LTS Casteuble emailed Dr. Coulibaly and thanked him for submitting his
weekly syllabus. See Email from Philippe Casteuble to Tiemoko Coulibaly (Jan. 24, 2012), EEO
Investigation Report at 829–30, ECF No. 36-4. In his email, LTS Casteuble also asked
Dr. Coulibaly a list of questions regarding the syllabus. See id. (asking, among other things,
whether “there is a theme” that Dr. Coulibaly planned to explore, and how an activity would help
Dr. Coulibaly’s students “reach the professional proficiency level”).
Some time later, LTS Casteuble again brought up the issue of Dr. Coulibaly’s weekly
syllabus. On February 2, 2012, LTS Casteuble emailed Dr. Coulibaly and said that, after looking
at Dr. Coulibaly’s weekly syllabus, he needed “to talk about it” with Dr. Coulibaly. Email from
Philippe Casteuble to Tiemoko Coulibaly (Feb. 2, 2012), EEO Investigation Report at 820, ECF
No. 36-4. LTS Casteuble suggested a meeting early the next morning. See id. Because
Dr. Coulibaly “was very surprised by what happened in [LTS Casteuble’s] office at the meeting
of January 24, 2012,” Dr. Coulibaly asked to schedule the proposed meeting to later in the day so
that he could arrange for a union representative to be present. Email from Tiemoko Coulibaly
14
See Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813
(“I was surprised when Philippe gave me his letter . . . reprimanding me for an incident of
December 29, 2011.”); see also Casteuble Mem. (Jan. 24, 2012), EEO Investigation Report at
815, ECF No. 36-4 (reproducing LTS Casteuble’s memorandum).
15
See Email from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation Report at 813
(indicating Dr. Coulibaly’s surprise at Phuong Nguyen’s presence); see also Email from Phuong
Nguyen to James North (Feb. 3, 2012), EEO Investigation Report at 821, ECF No. 36-4
(indicating that Phuong Nyugen was a “Supervisory HR Specialist” at FSI).
24
(Feb. 2, 2012), EEO Investigation Report at 819, ECF No. 36-4. After confirming with his own
superiors that it was appropriate for a union representative to attend the meeting, LTS Casteuble
proposed a meeting on February 6, 2012 and informed Dr. Coulibaly that a union representative
could attend.16 But the February 6, 2012 meeting ultimately did not occur: even though
Dr. Coulibaly emailed LTS Casteuble to confirm the meeting time on February 6, LTS Casteuble
claimed that, based on prior communications, he “could not know if the date and time was
accepted, by [Dr. Coulibaly] and by the union representative.”17
That same day, LTS Casteuble also wrote Dr. Coulibaly a separate email that reminded
Dr. Coulibaly about LTS Casteuble’s January 24, 2012 questions about Dr. Coulibaly’s weekly
syllabus. See Email from Philippe Casteuble to Tiemoko Coulibaly (Feb. 6, 2012, 8:29 AM),
EEO Investigation Report at 829, ECF No. 36-4 (“This is a friendly reminder that as of today I
have not received any response on the 14 questions I asked . . . .”). In response, Dr. Coulibaly
asserted that he had responded to LTS Casteuble’s questions by requesting a meeting with him,
and that LTS Casteuble “never responded” to Dr. Coulibaly’s request. See Email from Tiemoko
Coulibaly (Feb. 6, 2012, 9:19 AM), EEO Investigation Report at 827–28, ECF No. 36-4 (“[A]
meeting would be more appropriate to answer your ‘14 questions.’”). Dr. Coulibaly also sent a
separate email to LTS Casteuble, in which he noted that all of his students had passed their
16
See Email from Philippe Casteuble to Tiemoko Coulibaly (Feb. 3, 2012, 12:13 PM),
EEO Investigation Report at 833, ECF No. 36-4; Email from Phillipe Casteuble to Tiemoko
Coulibaly (Feb. 3, 2012, 1:26 PM), EEO Investigation Report at 832, ECF No. 36-4.
17
See Email from Tiemoko Coulibaly to Philippe Casteuble (Feb. 6, 2012, 8:32 AM),
EEO Investigation Report at 832, ECF No. 36-4 (writing to confirm the 9:00 AM meeting on
February 6, 2012); Email from Philippe Casteuble to Tiemoko Coulibaly (Feb. 6, 2012,
8:51 AM), EEO Investigation Report at 831, ECF No. 36-4 (opining that LTS Casteuble did not
know whether the 9:00 AM time was acceptable); Email from Tiemoko Coulibaly to Philippe
Casteuble (Feb. 6, 2012, 9:08 AM), EEO Investigation Report at 831, ECF No. 36-4 (indicating
that the 9:00 AM meeting did not occur).
25
recent tests, forwarded complimentary remarks from one of his students, and opined that
“[n]othing [was] wrong with [his] syllabus.” See Email from Tiemoko Coulibaly (Feb. 6, 2012,
9:34 AM), EEO Investigation Report at 839–41, ECF No. 36-4. In light of his students’ success,
Dr. Coulibaly characterized the criticisms of his syllabi as harassment. See id. (“Instead of
congratulating me, you are constantly harassing me with [the] Syllabus issue as Debra and Laura
Fyfe did [for] the last 6 months.”).
But despite Dr. Coulibaly’s communications with LTS Casteuble, Dr. Coulibaly received
another counseling memorandum on February 10, 2012, which again criticized Dr. Coulibaly’s
syllabi. See Casteuble Mem. (Feb. 10, 2012), Defs.’ Facts Ex. P, ECF No. 30-16 (reproducing
the memorandum). Perhaps because of the counseling memorandum, Dr. Coulibaly provided his
answers to LTS Casteuble’s January 24, 2012 questions that day. See Email from Tiemoko
Coulibaly (Feb. 10, 2012), EEO Investigation Report at 902–04, ECF No. 36-4. Dr. Coulibaly
also requested a sample satisfactory syllabus. See id. at 904 (“I would appreciate if you could
provide an example of a perfect syllabus you like so I can follow it line by line.”). Although
LTS Casteuble expressed privately to Director Blake and LTS Fyfe that he found Dr. Coulibaly’s
answers unsatisfactory, he later provided Dr. Coulibaly with additional feedback and a sample
syllabus to reference.18
Absence from Work
Dr. Coulibaly alleges that the discrimination at work caused him to become ill and that, at
the direction of his doctor, he took leave. See Compl. ¶ 175; Letter from Willie Hamlin to
18
See Email from Philippe Casteuble (Feb. 13, 2012, 8:13 AM), EEO Investigation
Report at 895, ECF No. 36-4 (“I see a laundry list of activities but I still don’t see how they
reinforce each other or how they are linked with his teaching objectives.”); Email from Philippe
Casteuble to Tiemoko Coulibaly (Feb. 13, 2012, 2:57 PM), EEO Investigation Report at 901,
ECF No. 36-4 (providing Dr. Coulibaly with feedback and a sample syllabus).
26
Catherine Russell at 2, Pl.’s Resp. Ex., at 146, ECF No. 36-2 (“It is recommended that
[Dr.] Coulibaly not return to work prior to March 26, 2012.”).19 FSI human resources documents
reflect that, beginning on Monday February 15, 2012 and until Friday March 23, 2012,
Dr. Coulibaly took a combination of sick leave, annual leave, and leave without pay for six
weeks. See Defs.’ Facts. Ex. Q, at 1315, 1317, ECF No. 30-17.
Termination
On April 2, 2012, FSI terminated Dr. Coulibaly’s employment, effective April 6, 2012,
because of his “inappropriate interactions with [his] supervisors, and [his] failure to follow
established procedures for requesting leave.” Letter from Catherine Russell to Tiemoko
Coulibaly (Apr. 2, 2012), Pl.’s Resp. Ex. 6, at 25, ECF No. 36-2.
C. Subsequent Procedural History
After Dr. Coulibaly’s termination, the Department of State’s Office of Civil Rights
continued to process Dr. Coulibaly’s discrimination allegations filed under EEO Case Number
DOS-F-025-12. See Defs.’ Facts Ex. II, ECF No. 30-35 (reproducing letters from the Office to
Dr. Coulibaly about his claims). The Office of Civil Rights allowed Dr. Coulibaly to amend his
claims to include allegations of wrongdoing relating to his leave requests and to his termination.
See id. at 8–13. But the Office of Civil Rights dismissed Dr. Coulibaly’s discrimination
allegations relating to 2009 events as untimely filed. See id. at 6–7.
Dr. Coulibaly also brought other claims before the Department of State and other
agencies—mostly claims that sought to bring to light additional wrongdoing that Dr. Coulibaly
felt occurred in the handling of his discrimination allegations. Thus, for instance, on August 20,
19
Because the initial exhibits appended to Dr. Coulibaly’s opposition brief are not
consecutively paginated, the Court also includes the page number automatically generated by
ECF.
27
2013—after Dr. Coulibaly’s case had apparently escalated to the Merit Systems Protection Board
(“MSPB”)—the Department of State’s Office of Civil Rights dismissed Dr. Coulibaly’s separate
discrimination claim filed under EEO Case Number DOS-F-119-13. See Defs.’ Facts Ex. V,
ECF No. 30-22 (reproducing the Office’s dismissal letter). That claim had alleged
discrimination based on the fact that the Department had provided the MSPB with the position
description for Dr. Coulibaly that was dated June 15, 2007. See id. at 1; see also supra Part
II.A.3 (discussing that 2007 position description, and the competing views about its origin and
purpose). The Department held that Dr. Coulibaly should have filed this claim with the MSPB
itself, and accordingly dismissed it. See Defs.’ Facts Ex. V at 1.
In 2014, Dr. Coulibaly brought additional discrimination allegations against the
Department of State, which the Department’s Office of Civil Rights filed under EEO Case
Number DOS-0207-14. See Defs.’ Facts Ex. W ¶¶ 24, 39, ECF No. 30-23 (discussing
Dr. Coulibaly’s allegations in the EEO Counselor’s Report); Defs.’ Facts Ex. X, ECF No. 30-24
(discussing the allegations in a letter filed under EEO Case Number DOS-0207-14). This time,
Dr. Coulibaly claimed that the Department conspired with the MSPB to dismiss whistleblower
claims that he had brought before the MSPB. See Defs.’ Facts Ex. W, ¶ 39. The Office of Civil
Rights dismissed this claim on June 24, 2014, and held that Dr. Coulibaly should have also
lodged this claim with the MSPB itself, instead of the Department. See Defs.’ Facts Ex. X
(reproducing the dismissal letter).
Lastly, on October 13, 2015, the Department of State dismissed yet another set of
Dr. Coulibaly’s discrimination claims, filed under EEO Case Number DOS-0232-15. See Pl.’s
28
Resp. Ex., at 56–60, ECF No. 36-2 (reproducing the dismissal letter). 20 In those claims,
Dr. Coulibaly had alleged that the Department had failed to provide him with a reasonable
accommodation for his supervisor and had improperly handled the processing of his medical
documentation. See id. at 56, ECF No. 36-2. The Department dismissed the claim because it
held that he had not timely brought his claim to an EEO counselor and because his claim failed
to “allege present harm to a term, condition, or privilege of employment inflicted on the basis of
[a protected class].” Id. at 56–58, ECF No. 36-2.
Apart from discrimination allegations raised before the Department of State,
Dr. Coulibaly also began filing claims under the Federal Tort Claims Act (“FTCA”) in 2014. In
that year, Dr. Coulibaly filed five FTCA claims against the Department of State, seeking
damages in the amounts of $10,000,000; $50,000,000; $50,000,000; $55,000,000; and
$60,000,000. See Defs.’ Facts Ex. C, at 5–8, ECF No. 30-25;21 id. Ex. CC, ECF No. 30-29. He
filed three FTCA claims against members of the MSPB, seeking damages in the amounts of
$5,000,000; $55,000,000; and $60,000,000. See id. Ex. C, at 2–3; id. Ex. EE, ECF No. 30-31.
And Dr. Coulibaly filed two FTCA claims against the EEOC, seeking damages in the amounts of
$25,000,000 and $50,000,000. Id. Ex. C, at 4; id. Ex. DD, ECF No. 30-30.
As further background for the case before the Court now, Dr. Coulibaly notes that in
March 2013, the Office of the Inspector General at the Department of State (OIG) conducted an
investigation of the French section within FSI. Compl. ¶ 82. The OIG determined that FSI had
“a significant number of Equal Employment Opportunity . . . and harassment-related
20
Because the initial exhibits appended to Dr. Coulibaly’s opposition brief are not
consecutively paginated, the Court also includes the page number automatically generated by
ECF.
21
Because the various FTCA claims compiled in Defendants’ Exhibit C are not
consecutively paginated, the Court cites to the ECF numbers automatically generated by ECF.
29
complaints.” Defs.’ Reply Pl.’s Opp’n Defs.’ Mot. Dismiss or Summ. J. (“Defs.’ Reply”) Att. F,
at 7, ECF No. 42-6 (reproducing the relevant excerpt of the report). See generally Office of
Inspector Gen., U.S. Dep’t of State & Broad. Bd. of Governors, Inspection of the Foreign
Service Institute (Mar. 2013), https://oig.state.gov/system/files/209366.pdf (reproducing the
entire report, but with some portions redacted).22
Dr. Coulibaly claims that he first filed the present litigation on November 15, 2013.
Compl. ¶ 162; see also ECF No. 1 (showing that Dr. Coulibaly’s initial complaint was stamped
“Received” in November 2013, but that the stamp was later crossed out). But that the complaint
was not docketed until February 10, 2014. See ECF No. 1 (showing that the initial complaint
was stamped “Filed” on February 10, 2014). In a pre-answer motion, Defendants move to
dismiss the complaint or, in the alternative, for summary judgment. See Defs.’ Mot. Dismiss or,
in the Alt., for Summ. J., ECF No. 30. Combined with his opposition brief, Dr. Coulibaly has
filed a motion for leave to file a fourth amended complaint. See Pl.’s Resp., ECF No. 36.
Dr. Coulibaly also later filed a motion to add newly acquired evidence to the record. See Pl.’s
Mot. Add Newly Acquired Evid., ECF No. 39.
III. ANALYSIS
Before the Court addresses the merits of the parties’ respective motions, the Court
addresses Defendants’ suggestion that the Court strike Dr. Coulibaly’s opposition brief.
22
Dr. Coulibaly requests that this Court require the Department of State to submit the full
report on the record. Compl. ¶ 90. Given that almost all of the report is available in the public
record and given Dr. Coulibaly’s inability to draw any causal link between the report and his
purported claims, the Court sees no reason to force such a disclosure at this time. This issue can
be revisited during discovery on Dr. Coulibaly’s discrimination and retaliation claims.
30
A. Length of Dr. Coulibaly’s Opposition Brief
In their reply brief, Defendants suggest that the Court strike Dr. Coulibaly’s opposition
brief and claim that the extreme length of his submission violates Local Civil Rule 7(e). See
Defs.’ Reply at 1, ECF No. 42. Defendants cite OAO Alfa Bank v. Center for Public Integrity,
387 F. Supp. 2d 20, 39 (D.D.C. 2005), as support for striking the excessive pages. But
Defendants do not mention that the OAO court granted the noncompliant party leave to amend
and, later, reconsidered the amended motion. Id. Further, the parties in OAO were represented
by counsel and, therefore, did not receive the expanded deference afforded to a pro se plaintiff
such as Dr. Coulibaly. See id. at 22–23, 39. Thus, OAO at most stands for the proposition that
the Court should offer Dr. Coulibaly an opportunity to revise and resubmit his opposition brief.
Defendants also cite Corson & Gruman Co. v. NLRB, 899 F.2d 47, 50–51 n.4 (D.C. Cir.
1990), as analogous support. However, that case is also distinguishable because it did not
involve a pro se plaintiff. See id. at 48. Consequently, because Dr. Coulibaly is pro se, the
Court will decline to strike Dr. Coulibaly’s opposition brief but will warn Dr. Coulibaly to
comply with this Court’s rule on briefing length limits in the future. If he does not, the Court
will exercise its authority to strike any future briefs that go over the applicable limits.
B. Tort and Contract Claims
The Court now turns to the merits of Defendants’ motion to dismiss or, in the alternative,
for summary judgment. The Court addresses Defendants’ arguments in a few groups, roughly
divided based on the laws under which Dr. Coulibaly’s claims might reasonably fall. The Court
first addresses Dr. Coulibaly’s tort and contract claims, before turning to his claims under Title
VII of the Civil Rights Act of 1964, the Rehabilitation Act, the First Amendment of the
Constitution, and District of Columbia local statutes.
31
The following counts of the complaint appear to allege tort or contract claims:
(1) Count 7, which alleges intentional and negligent infliction of emotional distress,
see Compl. ¶¶ 108–09;
(2) Count 8, which alleges active concealment of Dr. Coulibaly’s 2007 hiring and
contends that the concealment is evidence of misrepresentation and fraud, see id.
¶¶ 110–11;
(3) Count 9, for promissory fraud, id. ¶¶ 112–13;
(4) Count 10, which appears to allege a breach of an implied covenant of good faith
and fair dealing, see id. ¶¶ 114–15;
(5) Count 11, which alleges promissory estoppel, id. ¶¶ 116–17;
(6) Count 16, which broadly alleges that Dr. Coulibaly timely exhausted his FTCA
claims for infliction of emotional distress, see id. ¶¶ 143–64;
(7) The first of the two counts labeled “Count 19” in Dr. Coulibaly’s complaint,
which alleges defamation and character assassination, id. ¶¶ 184–92; and
(8) Count 21, which alleges conspiracy to commit fraud, extortion, infliction of
emotional distress, and personal injury under the FTCA, see id. ¶¶ 207–08.
Before turning to the merits of these claims, however, the Court reviews the legal standard for
Defendants’ motion to dismiss them.
Legal Standards
Defendants’ arguments about the tort and contract counts rest on jurisdictional grounds,
on Dr. Coulibaly’s failure to state a claim, and on insufficient service of process. The Court
accordingly applies the legal standards for motions to dismiss for lack of subject-matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1), for insufficient service of process
32
under Federal Rule of Civil Procedure 12(b)(5), and for failure to state a claim under Federal
Rule of Civil Procedure 12(b)(6).23
a. Rule 12(b)(1)
Federal courts are courts of limited jurisdiction, and the law presumes that “a cause lies
outside this limited jurisdiction.” Rasul v. Bush, 542 U.S. 466, 489 (2004) (quoting Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). It is the plaintiff's burden to establish
that the court has subject matter jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992). To determine whether jurisdiction exists, a court may “consider the complaint
supplemented by undisputed facts evidenced in the record, or the complaint supplemented by
undisputed facts plus the court's resolution of disputed facts.” Coal. for Underground Expansion
v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003).
The United States “is immune from suit save as it consents to be sued, and the terms of
consent to be sued in any court define that court’s jurisdiction to entertain the suit.” Fornaro v.
James, 416 F.3d 63, 66 (D.C. Cir. 2005) (internal quotation marks omitted) (quoting United
States v. Sherwood, 312 U.S. 584, 586 (1941)). “If sovereign immunity has not been waived, a
claim is subject to dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction.” Clayton
v. Dist. of Columbia, 931 F. Supp. 2d 192, 200 (D.D.C. 2013) (citing FDIC v. Meyer, 510 U.S.
471, 475 (1994) (“Sovereign immunity is jurisdictional in nature.”)). Courts “may not find a
waiver unless Congress’ intent is ‘unequivocally expressed’ in the relevant statute.” Hubbard v.
23
Defendants’ motion also appears to seek dismissal under Federal Rule of Civil
Procedure 8(a). See Mem. Supp. Defs.’ Mot. Dismiss or, in the Alt., for Summ. J. (“Defs.’
Mem.”) 1–2, ECF No. 30. A complaint is subject to dismissal under Rule 8(a) when there is
insufficient notice to allow the defense of the plaintiff’s claims. See Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 514 (2002). Because Defendants do not develop this line of reasoning in
their motion brief, see Defs.’ Mem., the Court will not consider it.
33
Adm’r, EPA, 982 F.2d 531, 532 (D.C. Cir. 1992) (quoting United States v. Mitchell, 445 U.S.
535, 538 (1980)).
Because sovereign immunity is a jurisdictional issue, FDIC v. Meyer, 510 U.S. 471, 475
(1994), Defendants’ arguments invoking sovereign immunity require the Rule 12(b)(1) standard
of review, not the Rule 12(b)(6) standard of review, to govern the Court’s analysis. Therefore,
Dr. Coulibaly has the burden to prove that Congress has waived sovereign immunity for the
claims Plaintiff brings against the United States, the Department of State and any federal
employees, if sued in their official capacity. See Tri-State Hosp. Supply Corp. v. United States,
341 F.3d 571, 575 (D.C. Cir. 2003).
b. Rule 12(b)(5)
“Before a federal court may exercise personal jurisdiction over a defendant, the
procedural requirement of service of summons must be satisfied.” Omni Capital Int’l, Ltd. v.
Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987); accord Gorman v. Ameritrade Holding
Corp., 293 F.3d 506, 514 (D.C. Cir. 2002). When the propriety of service is challenged, “[b]y
the plain text of Rule 4, the plaintiff has the burden to ‘demonstrate that the procedure employed
to deliver the papers satisfies the requirement of the relevant portions of Rule 4.’” Mann v.
Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012) (quoting 4A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure § 1083 (3d ed. 2002 & Supp. 2012)).
In cases in which the plaintiff proceeds in forma pauperis, the Court must “order that
service be made by a United States marshal or deputy marshal or by a person specially appointed
by the court.” Fed. R. Civ. P. 4(c)(3). Further, parties proceeding pro se “are allowed more
latitude than litigants represented by counsel to correct defects in service of process and
pleadings.” Moore v. Agency for Int’l Dev., 994 F.2d 874, 876 (D.C. Cir. 1993). This latitude,
34
however, “does not constitute a license for a plaintiff filing pro se to ignore the Federal Rules of
Civil Procedure.” Id. (internal quotation marks omitted) (quoting Jarrell v. Tisch, 656 F. Supp.
237, 239 (D.D.C. 1987)).
c. Rule 12(b)(6)
In considering a motion to dismiss under Rule 12(b)(6), the Court presumes that the
complaint’s factual allegations are true and construes them liberally in the plaintiff’s favor. See,
e.g., United States v. Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000). A Rule
12(b)(6) motion does not test a plaintiff’s ultimate likelihood of success on the merits; rather, it
tests whether a plaintiff has properly stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236
(1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982); Brewer v.
Dist. of Columbia, 891 F. Supp. 2d 126, 130 (D.D.C. 2012).
Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief
above the speculative level on the assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations and footnote omitted).
“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678.
A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a court presume
the veracity of the legal conclusions that are couched as factual allegations, see Twombly, 550
U.S. at 555.
35
Official Capacity Claims
Defendants in this action are the United States, Secretary Kerry in his official capacity,
and all other defendants in their official and personal capacities. See Compl. ¶¶ 19–23. The
Court first addresses Dr. Coulibaly’s tort and contract claims against the United States and
against the individual defendants in their official capacities, before turning to Dr. Coulibaly’s
claims against individual defendants in their personal capacities.
With respect to the tort and contract claims against the United States and against the
individual defendants in their official capacities, Dr. Coulibaly must establish that a waiver of
sovereign immunity applies. The federal government, its agencies, and federal officials when
sued in their official capacities are shielded from actions for damages unless sovereign immunity
has been waived. See Friends of the Earth v. EPA, 934 F. Supp. 2d 40, 45–46 (D.D.C. 2013)
(citing FDIC v. Meyer, 510 U.S. 471, 475 (1994); Kentucky v. Graham, 473 U.S. 159, 166–67
(1985)).
For tort claims, the relevant waiver of sovereign immunity is the FTCA. See generally
ch. 753, Title IV, 60 Stat. 842 (1946) (codified as amended at 28 U.S.C. §§ 2671–2680). Under
the FTCA, the United States is liable “for money damages . . . for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission” of any federal
employee acting with the scope of his employment. 28 U.S.C. § 1346(b)(1); see id. § 2674
(declaring that “[t]he United States shall be liable” for tort claims as described in § 1346).
But the FTCA does not typically apply to claims arising out of “interference with contract
rights.” Id. § 2680(h). For contract claims, the relevant waiver of sovereign immunity is the
Tucker Act. See ch. 359, 24 Stat. 505 (1887) (codified as amended at 28 U.S.C. § 1491). Under
the Tucker Act, Congress waived sovereign immunity with respect to “any claim against the
36
United States . . . upon any express or implied contract with the United States.” 28 U.S.C.
§ 1491(a)(1).
In analyzing Dr. Coulibaly’s tort claims against the United States and its employees in
their official capacities, the Court uses the FTCA as the relevant framework. In doing so, the
Court addresses Counts 7, 8, 9, 10, 11, 16, and 21 of Dr. Coulibaly’s complaint, as well as the
first of the two counts labeled “Count 19.” The Court then discusses Dr. Coulibaly’s contract
claims against the United States and its employees in their official capacities, using the Tucker
Act as the relevant framework. In doing so, the Court addresses Counts 8, 9, 10, 11, and 21 of
Dr. Coulibaly’s complaint.
a. Tort Claims Under the FTCA
The Court begins its consideration of Dr. Coulibaly’s official-capacity tort claims under
the FTCA by summarizing the governing framework. The FTCA serves as a waiver of sovereign
immunity and makes the federal government liable to the same extent as a private individual for
certain torts of federal employees acting within the scope of their employment. 28 U.S.C.
§§ 1346, 2674; United States v. Orleans, 425 U.S. 807, 813 (1976). Because governing law
“accords federal employees absolute immunity from common-law tort claims arising out of acts
they undertake in the course of their official duties,” Osborn v. Haley, 549 U.S. 225, 229 (2007),
a plaintiff may not bring tort claims against federal officials in their official capacities or against
federal agencies; the proper defendant is the United States itself, see 28 U.S.C. § 1346(a)(2);
Goddard v. D.C. Redevelopment Land Agency, 287 F.2d 343, 345–46 (D.C. Cir. 1961); Welsh v.
Hagler, 83 F. Supp. 3d 212, 223 (D.D.C. 2015).
The FTCA provides the exclusive remedy “[w]here a plaintiff seeks monetary damages
against a federal agency for torts committed by federal employees.” Lempert v. Rice, 956 F.
37Supp. 2d 17, 28 (D.D.C. 2013) (alteration in original) (quoting Jones v. United States, 949 F.
Supp. 2d 50, 53 (D.D.C. 2013)); see also 28 U.S.C. § 2679(b)(1) (declaring the FTCA remedy
“exclusive of any other civil action or proceeding for money damages”). Failure to name the
United States as the defendant in an FTCA action requires dismissal for lack of subject-matter
jurisdiction. See, e.g., Johnson v. Veterans Affairs Med. Ctr., 133 F. Supp. 3d 10, 17 (D.D.C.
2015); Cox v. Sec’y of Labor, 739 F. Supp. 28, 29 (D.D.C. 1990).
For that reason, here, the Court must dismiss Dr. Coulibaly’s claims against federal
employees in their official capacities. Any tort claims based on the employees’ official actions
must be considered as claims against the United States; the official-capacity claims against the
employees cannot proceed. Given that Dr. Coulibaly has, however, also sued the United States,
see Compl., the Court now turns to whether Dr. Coulibaly’s tort claims against the United States
may proceed under the FTCA. The Court determines that they cannot, for two principal reasons.
First, federal antidiscrimination statutes preclude consideration of Dr. Coulibaly’s
discrimination, retaliation, and emotional distress claims (Counts 7, 16, and 21 of the complaint)
under the FTCA. For claims of race and national origin discrimination, Title VII “provides the
exclusive judicial remedy . . . in covered federal employment.” Kizas v. Webster, 707 F.2d 524,
542 (D.C. Cir. 1983) (brackets and internal quotation marks omitted) (quoting Brown v. GSA,
425 U.S. 820, 835 (1976)); see also 42 U.S.C. § 2000e-16 (banning discrimination in federal
employment and authorizing judicial relief for violations of that ban). Thus, allegations of race
and national original discrimination are only actionable under Title VII. Myvett v. Williams, 638
F. Supp. 2d 59, 69–70 (D.D.C. 2009) (citing Brown, 425 U.S. at 829; Ethnic Employees of
Library of Congress v. Boorstin, 751 F.2d 1405, 1415 (D.C. Cir. 1985)). Likewise, Title VII
preempts most tort claims alleging discrimination-related infliction of emotional distress. See
38
Boyd v. O’Neill, 273 F. Supp. 2d 92, 96 (D.D.C. 2003) (explaining that “[a]ny emotional injuries
arising from [an] alleged [discrimination claim] are subsumed within Title VII,” but that this
principle does not extend to emotional distress based on “alleged assaultive conduct” or other
conduct that Title VII does not redress); accord Jackson v. Am. Chem. Soc’y, 812 F. Supp. 239,
243 (D.D.C. 1993); Stewart v. Thomas, 538 F. Supp. 891, 895–96 (D.D.C. 1982).24
Along similar lines, for disability discrimination claims, the Rehabilitation Act “is the
sole judicial remedy for federal employees alleging disability discrimination” and accordingly
preempts any emotional distress claim arising from disability discrimination. Perry v. United
States, No. 14-2862, 2015 WL 3558081, at *3 (D. Md. June 2, 2015) (citing Brown v.
Henderson, 6 F. App’x 155, 156 (4th Cir. 2011); and Spence v. Straw, 54 F.3d 196, 202 (3d Cir.
1995)), appeal docketed, No. 16-1129 (4th Cir. Feb. 9, 2016). Here, because Dr. Coulibaly
alleges emotional distress arising from discrimination that Title VII and the Rehabilitation Act
can remedy, see Compl. ¶¶ 144, 147, Title VII and the Rehabilitation Act preempt
Dr. Coulibaly’s discrimination, retaliation, and emotional distress claims, to the extent they seek
24
Although Count 21 alleges “personal injury,” Compl. ¶ 208, the Court construes the
Count as alleging only emotional injury, given that Dr. Coulibaly has not alleged any physical
harm flowing from the conspiracy asserted in that Count, see id.
39
tort law remedies.25 The Court will accordingly dismiss Counts 7, 16, and 21 of Dr. Coulibaly’s
complaint, to the extent that they allege tort claims against the United States.26
Second, to the extent that Dr. Coulibaly may seek to apply the FTCA to his claims of
misrepresentation, fraud, defamation, character assassination, promissory fraud, violation of the
implied covenant of good faith and fair dealing, and promissory estoppel (asserted in Counts
8–11 and in the first of the two counts labeled “Count 19” in the complaint), those claims cannot
proceed because they fall under express statutory exemptions.27 The FTCA explicitly specifies
that it does not apply to claims “arising out of . . . libel, slander, misrepresentation, deceit or
interference of contract rights.” See 28 U.S.C. § 2680(h). Dr. Coulibaly’s claims of defamation
and “character assassination” fall squarely within the exemptions for libel and slander. See
Lewis v. Dist. of Columbia, No. 10-5275, 2011 WL 321711, at *1 (D.C. Cir. Feb. 2, 2011) (per
curiam) (noting that “defamation claims are not cognizable under the FTCA”); Novecon, Ltd. v.
Bulgarian-Am. Enter. Fund, 977 F. Supp. 52, 54 (D.D.C. 1997), aff’d, 190 F.3d 556 (D.C. Cir.
1999) (applying defamation law to a claim of “character assassination”); see also Thomas v.
Dep’t of Veterans Affairs, No. 05-5348, 2006 WL 1636738, at *4 (S.D.N.Y. Apr. 3, 2006) (in the
25
The federal antidiscrimination statutes would also preempt any tort claims that
Dr. Coulibaly seeks to bring under the Constitution. See Compl. ¶ 147 (alleging a due process
violation as one cause of his emotional distress claim, asserted in Count 16 of the complaint).
See generally Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir. 1983) (“The Title VII remedy
declared exclusive for federal employees in Brown v. GSA precludes actions against federal
officials for alleged constitutional violations as well as actions under other federal legislation.”).
And, in any event, constitutional tort claims cannot proceed under the FTCA, because the
FTCA’s grant of sovereign immunity does not extend to constitutional tort claims. See FDIC v.
Meyer, 510 U.S. 471, 478 (1994) (“[T]he United States . . . has not rendered itself liable under
[the FTCA] for constitutional tort claims.”).
26
The Court discusses the merits of Dr. Coulibaly’s Title VII and Rehabilitation Act
claims elsewhere in this opinion. See infra Parts III.C–D.
27
For thoroughness, the Court addresses Dr. Coulibaly’s contract-related claims in both
the tort and contract contexts.
40
context of the FTCA, liberally construing pro se plaintiff’s claim of “character assassination” to
mean defamation). His claims of misrepresentation, fraud, and promissory fraud are precluded
by the exemptions for misrepresentation and deceit. See United States v. Neustadt, 366 U.S. 696,
702 (1961) (holding that the word “deceit” includes fraudulent and negligent misrepresentation);
Chedick v. Nash, 151 F.3d 1077, 1081–82 (D.C. Cir. 1998) (analyzing “promissory fraud” within
the context of fraudulent misrepresentation). As for Dr. Coulibaly’s claims for breach of an
implied covenant of good faith and fair dealing and promissory estoppel, to the extent that they
are construed as tort claims, they fall under the statutory exemption for interference of contract
rights. See Selland v. United States, 966 F.2d 346, 347 (8th Cir. 1992) (liberally construing
facial breach of contract claims as tortious interference with contractual relations, and finding
them exempt under the FTCA); Foster v. Fed. Emergency Mgmt. Agency, 128 F. Supp. 3d 717,
723 (E.D.N.Y. 2015) (analyzing breach of contract and promissory estoppel claims together in
the context of the FTCA). The United States retains immunity from these claims, for FTCA
purposes, and courts must dismiss any suits asserting those claims under the FTCA. See, e.g.,
Wuterich v. Murtha, 562 F.3d 375, 381 (D.C. Cir. 2009); Peter B. v. United States, 579 F. Supp.
2d 78, 82–83 (D.D.C. 2008); Edmonds v. United States, 436 F. Supp. 2d 28, 35 (D.D.C. 2006).
The Court will accordingly dismiss Dr. Coulibaly’s contract-related, defamation, character
assassination, and misrepresentation claims (asserted in Counts 8–11 and in the first of the two
counts titled “Count 19” in the complaint), to the extent that they seek relief under the FTCA,
because they are barred by statute.
b. Contract Claims Under the Tucker Act
Having decided that the Court must dismiss Dr. Coulibaly’s tort claims against federal
employees in their official capacities and against the United States, the Court next analyzes
41
Dr. Coulibaly’s contract claims against the United States and against federal employees in their
official capacity. To that end, the Court once again discusses Counts 8–11 of the complaint,
which assert misrepresentation, fraud, promissory fraud, violation of the implied covenant of
good faith and fair dealing, and promissory estoppel. These claims, which Dr. Coulibaly cannot
bring under the FTCA, are more properly read as contract claims to which the Tucker Act would
apply. But, even to the extent that they seek relief under the Tucker Act, the Court must still
dismiss them for want of jurisdiction.
Under the Tucker Act, Congress waived sovereign immunity with regard to “any claim
against the United States . . . upon any express or implied contract with the United States.” 28
U.S.C. § 1491(a)(1). Moreover, the Tucker Act provides the only waiver of sovereign immunity
for claims arising out of contracts with the United States. Schmidt v. Shah, 696 F. Supp. 2d 44,
61 (D.D.C. 2010). But the Tucker Act states that “[t]he United States Court of Federal Claims
shall have jurisdiction to render judgment upon any claim against the United States founded . . .
upon any express or implied contract with the United States.” 28 U.S.C. § 1491(a)(1) (emphasis
added). If a claimant does not limit the damages sought to an amount at or below $10,000, then
the jurisdiction of the Court of Federal Claims is exclusive. See Greenhill v. Spellings, 482 F.3d
569, 573 (D.C. Cir. 2007) (“If [the plaintiff] explicitly or in essence seeks money damages in
excess of $10,000, jurisdiction rests exclusively with the Court of Federal Claims.”); cf. 28
U.S.C. § 1346(a)(2) (stating that the United States district courts exercise concurrent jurisdiction
over “[a]ny . . . claim against the United States, not exceeding $10,000 in amount, founded . . .
upon any express or implied contract with the United States” (emphasis added)).
Here, Dr. Coulibaly has requested an amount greater than the $10,000 jurisdictional cap:
in the FTCA claim against the Department of State in which he alleges “Breach of Contract,” he
42
requests $10,000,000 in damages. See Defs.’ Facts Ex. CC at 1, ECF No. 30-29.28 Because
Dr. Coulibaly’s claimed contract-related damages exceed $10,000, the Court must also dismiss
for lack of jurisdiction any contract claims that Dr. Coulibaly seeks to bring against the United
States under the Tucker Act.
* * *
In sum, to the extent that Counts 7–11, Count 16, Count 21, and the first of the two
counts labeled “Count 19” in the complaint allege tort or contract claims against the United
States or against individual defendants in their official capacities, the Court must dismiss them.
Personal Capacity Claims
The Court now considers whether any of these claims may proceed against the individual
defendants in their personal capacities, given that Dr. Coulibaly states that he is suing all of the
individual defendants, except for Secretary Kerry, in their official and personal capacities. Pl.’s
Resp. ¶ 155. In a suit against a federal employee in his personal capacity, unlike one against a
federal employee in his official capacity, the plaintiff need not establish a waiver of sovereign
immunity. See, e.g., Majano v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006) (indicating
that sovereign immunity is not a bar to relief if allegedly tortious conduct occurred outside the
scope of the tortfeasor’s employment). But (1) for lack of proper service and (2) because they
fail to state claims upon which relief may be granted, the Court must also dismiss
Dr. Coulibaly’s tort and contract claims against the individual defendants in their personal
capacities. The Court addresses the service issue before addressing the claims on their merits.
28
In his response to the Defendants’ motion, Dr. Coulibaly concedes that the United
States is the proper defendant for his FTCA claims. Pl.’s Resp. ¶ 160. Consequently, the Court
views this FTCA claim as one filed against the United States, even if Dr. Coulibaly initially
sought relief from the Department of State.
43
a. Lack of Proper Service
In addition to effectuating service on the United States under Federal Rule of Civil
Procedure 4(i)(1), a plaintiff who sues government officials in their individual capacities must
also personally serve the individual officials themselves. See Fed. R. Civ. P. 4(i)(3) (“[A] party
must . . . serve the officer or employee under Rule 4(e), (f), or (g).”); Simpkins v. D.C. Gov’t, 108
F.3d 366, 368–69 (D.C. Cir. 1997) (explaining that in Bivens suits, which are “actions against
federal officers in their individual capacity, not their official capacity,” the defendants “must be
served as individuals”). To serve the personal-capacity defendants in this case, therefore, the
complaint and the summons must be
(1) delivered to each individual personally, Fed. R. Civ. P. 4(e)(2)(A); or
(2) left at each individual’s “dwelling or usual place of abode with someone of
suitable age and discretion,” Fed. R. Civ. P. 4(e)(2)(B); or
(3) delivered to “an agent authorized by appointment or law to receive service of
process,” Fed. R. Civ. P. 4(e)(2)(C); or
(4) mailed by “registered or certified mail, return receipt requested,” or “by first-class
mail, postage prepaid, to the person to be served, together with two copies of a
Notice and Acknowledgement . . . and a return envelope, postage prepaid,
addressed to the sender,” D.C. Super. Ct. R. Civ. P. 4(c)(3), (4); see Fed. R. Civ.
P. 4(e)(1) (allowing service in accordance with the state law applicable in the state
were the district court is located).
Because Dr. Coulibaly is proceeding in forma pauperis, however, service shall be made by a
United States marshal, by a deputy marshal, or by “a person specially appointed by the court.”
44
Fed. R. Civ. P. 4(c)(3); see Feb. 10, 2014 Fiat Order (granting Dr. Coulibaly’s motion for leave
to proceed in forma pauperis).
On the record as it stands, proper service has not been effected on the individual
defendants sued in their personal capacities. As the Defendants correctly note, the United States
Marshals Service delivered the summons and complaint for five of the individual defendants
(Soloman Atayi, Deborah Duckett, James North, Kristina Medick, and Jennifer Toole) to Krystal
Board, a Department of State administrative assistant. See Process Receipts and Returns, ECF
No. 4; Mem. Supp. Defs.’ Mot. Dismiss or, in the Alt., for Summ. J. (“Defs.’ Mem.”) at 5–6,
ECF No. 30. According to Defendants, Ms. Board is “a contract Administrative Assistant in the
State Department’s Office of the Legal Advisor.” Defs.’ Mem. at 6. On this record, none of the
four ways of properly serving the individual defendants in their personal capacities has occurred
with respect to Defendants Atayi, Duckett, North, Medick, and Toole:
(1) the complaint and summons were not delivered to those defendants personally, cf.
Fed. R. Civ. P. 4(e)(2)(A);
(2) they were not left at each defendant’s “dwelling or usual place of abode with
someone of suitable age and discretion,” Fed. R. Civ. P. 4(e)(2)(B);
(3) because “the Department is not an authorized agent for service of process with
respect to civil litigation against Department employees purely in their personal,
non-official capacity,” 22 C.F.R. § 172.2(c), the complaint and summons were not
delivered to “an agent authorized by appointment or law to receive service of
process,” Fed. R. Civ. P. 4(e)(2)(C); and
(4) the complaint and summons were not mailed to any of the individual defendants,
cf. D.C. Super. Ct. R. Civ. P. 4(c)(3), (4).
45
Further, the record reflects that no service has been attempted on the other individual
defendants sued in their personal capacities: Defendants Glenn Budd, Sarah Clement, Jeannette
Hilleary, Cynthia G. McKnight, Martin Regan, and Daniel Madden Turbitt. Cf. Process Receipts
and Returns, ECF No. 4 (showing delivery of the summons and complaint with respect to
Defendants Atayi, Duckett, North, Medick, and Toole only); Process Receipts and Returns, ECF
No. 6 (showing delivery of the summons and complaint with respect to the United States only).
On this record, none of the individual defendants sued in their personal capacities have been
properly served, and Dr. Coulibaly’s tort and contract claims cannot proceed against them for
lack of proper service. See generally Mann v. Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012)
(explaining that the plaintiff has the burden to establish proper service).
Granted, Dr. Coulibaly is in forma pauperis and thus not himself responsible for effecting
service (even if he does bear the ultimate burden to establish proper service). See Fed. R. Civ. P.
4(c)(3). But even if Dr. Coulibaly, through the Marshals Service, were given another
opportunity to serve the individual defendants sued in their personal capacities, such tort or
contract claims against them would fail for other reasons, which the Court discusses below.29 As
such, re-attempting service would be futile.
29
The Court also notes here that, if the individual defendants sued in their personal
capacities were ever served, the United States would have the opportunity to certify under the
Westfall Act “that the defendant employee[s] [were] acting within the scope of [their] . . .
employment.” 28 U.S.C. § 2679(d)(1). If it did, then the United States would be substituted as
the party defendant, id., and any defects with the corresponding FTCA tort claims would be
applicable, see, e.g., Majano v. United States, 469 F.3d 138, 139 (D.C. Cir. 2006) (explaining
that, when the FTCA waiver of sovereign immunity does not cover the particular tort alleged, the
plaintiff’s “sole hope of success requires that she show [that the alleged tort] was not within the
scope of the [federal employee’s] employment”); Ramey v. Bowsher, 915 F.2d 731, 733–34
(D.C. Cir. 1990) (per curiam) (finding that supervisors were acting within the scope of their
employment and were exercising decisionmaking discretion, and therefore concluding that they
enjoyed absolute immunity from state-law tort actions). As discussed above, Dr. Coulibaly’s tort
and contract claims against the individual defendants in their official capacities cannot proceed
46
b. Expired Limitations Period
The Court first discusses Dr. Coulibaly’s “defamation and character assassination” claim
(the first “Count 19” in his complaint). This claim, if asserted against the individual defendants
in their personal capacities, is barred by the applicable statute of limitations. See Defs.’ Mem. at
28 (making this argument). It appears that this claim relates to statements made near the end of
Dr. Coulibaly’s employment at the Department of State, which concluded in April 2012. See
Compl. ¶¶ 185–92. For defamation claims, a one-year limitations period applies in the District
of Columbia. See D.C. Code § 12-301(4) (setting a one-year limitations period for libel and
slander claims); Mullin v. Wash. Free Weekly, Inc., 785 A.2d 296, 298 (D.C. 2001) (citing D.C.
Code § 12-301(4)) (noting that the limitations period “for a defamation claim in the District of
Columbia is one year”).30 That limitations period had accordingly expired by the time that
Dr. Coulibaly filed his complaint on February 10, 2014. See Compl. And the limitations period
would also have expired even if, as Dr. Coulibaly claims, he filed his complaint on November
15, 2013. See id. ¶ 162.
c. Preemption Under Title VII
Dr. Coulibaly’s infliction of emotional distress claims (asserted in Counts 7, 16, and 21
of his complaint) and Dr. Coulibaly’s contract claims (asserted in Counts 8–11), on the other
under the FTCA, because federal antidiscrimination statutes preempt many of those claims, and
because the FTCA’s waiver of sovereign immunity does not cover many of the claims alleged.
See supra Part III.B.2.a.
30
Dr. Coulibaly has not alleged that Maryland law should apply to his defamation claim.
See Compl. ¶¶ 184–92; Pl.’s Resp. ¶¶ 504–12; cf. Compl. ¶ 19 (alleging that Dr. Coulibaly is a
Maryland resident). But even if Maryland law did apply, a one-year limitations period would
apply under Maryland law as well. See Md. Code Ann., Cts. & Jud. Proc. § 5-105 (“An action
for . . . libel, or slander shall be filed within one year from the date it accrues.”); McClure v.
Lovelace, 78 A.3d 934, 949 (Md. 2013) (“In Maryland, the statute of limitations for defamation
is one year from the date of accrual.”).
47
hand, cannot proceed against the individual defendants in their personal capacities for a reason
already mentioned: Title VII preempts those claims. See supra Part III.B.2.a (explaining, in the
context of tort claims against the United States, that Title VII preempts most discrimination-
related emotional distress claims). In a case in which “the same set of facts supports a Title VII
claim and a non-Title VII claim against a federal employer, the Title VII claim preempts the
non-Title VII claim.” Bergbauer v. Mabus, 810 F. Supp. 2d 251, 260 (D.D.C. 2011) (internal
quotation marks omitted) (quoting Mathis v. Henderson, 243 F.3d 446, 450–51 (8th Cir. 2001)).
This preemptive effect applies both to non-Title VII federal law claims and to common law tort
and contract claims. See King v. Holder, 941 F. Supp. 2d 83, 92 (D.D.C. 2013) (explaining that
Title VII preempts “both [federal] constitutional claims and common law tort claims arising out
of the same conduct that forms the basis for a plaintiff’s Title VII claim”); Berio v. EEOC, 446
F. Supp. 171, 173–74 (D.D.C. 1978) (finding that Title VII precluded a plaintiff’s claims under
42 U.S.C. § 1981 and the Fifth Amendment); Smith v. Lujan, 780 F. Supp. 1275, 1279 (D. Ariz.
1991) (finding that Title VII precluded the plaintiff’s due process and breach of contract claims);
Carver v. Casey, 669 F. Supp. 412, 417 (S.D. Fla. 1987) (“[T]he gist of plaintiff's “breach of
contract” claims is employment discrimination, for which Title VII stands as a federal
employee’s exclusive remedy.”). And Title VII’s preemptive effect “is the same as to claims
against individual supervisors as it is for claims against federal agencies themselves.”
Bergbauer, 810 F. Supp. 2d at 260; see also Mathis, 243 F.3d at 450 (holding that the plaintiff
could not “bring state-law claims against [her supervisor] arising out of the same facts [as her
48
employment discrimination claim] simply by labeling them as something other than employment
discrimination claims”).31
Here, Dr. Coulibaly’s emotional distress and contract claims derive from the same facts
as his Title VII claims. For his infliction of emotional distress claim (Count 7 of his complaint),
Dr. Coulibaly draws on the same facts to support that claim as the ones used to support his
hostile work environment claim. See Compl. ¶¶ 106–09. His contract claims in Counts 8–11 of
his complaint likewise derive from facts used to support claims of discrimination. Compare id.
¶¶ 37–103 (using facts relating to Dr. Coulibaly’s time as a contractor to support claims of
discrimination), with id. ¶¶ 110–17 (using the same facts to support his contract claims). And
Dr. Coulibaly expressly alleges Title VII violations as the basis for his emotional distress claim
in Count 16 of his complaint. See id. ¶ 147. 32 Lastly, Dr. Coulibaly’s emotional distress claim
31
The Court acknowledges that older opinions in this district indicate that Title VII does
not preempt tort claims against federal supervisors in their personal capacities, even if those
claims derive from the same facts as related employment discrimination claims. See Epps v.
Ripley, No. 81-0588, 1982 WL 514, at *1 (D.D.C. Mar. 11, 1982); Neely v. Blumenthal, 458 F.
Supp. 945, 954–55 (D.D.C. 1978). But given the more recent opinions holding otherwise, the
Court finds that the older opinions have not “withstood the test of time nor the thrust of new
caselaw.” Kittner v. Gates, 708 F. Supp. 2d 47, 53 (D.D.C. 2010) (discussing Neely).
32
Title VII also preempts consideration of any constitutional due process claim against
individual defendants in their personal capacities. See Kizas v. Webster, 707 F.2d 524, 542 (D.C.
Cir. 1983) (“The Title VII remedy declared exclusive for federal employees in Brown v. GSA
precludes actions against federal officials for alleged constitutional violations . . . .”); Kittner,
708 F. Supp. 2d at 53–54 (dismissing constitutional claims that challenged the same acts as those
challenged by the plaintiff’s Title VII claims); Berio v. EEOC, 446 F. Supp.171, 173–74 (D.D.C.
1978) (holding that Title VII’s remedies precluded a plaintiff from pursuing claims against an
official in his individual capacity under the Fifth Amendment); cf. Compl. ¶ 147 (alleging due
process violations in Count 16 of the complaint).
Nor may Dr. Coulibaly sue federal officials in their personal capacities under Title VII,
the Americans with Disabilities Act (“ADA”), or the Rehabilitation Act. See Ndzerre v.
WMATA, No. 15-1229, 2016 WL 1225599, at *5 (D.D.C. Mar. 23, 2016) (citing Gary v. Long,
59 F.3d 1391, 1399 (D.C. Cir. 1995)) (“Supervisory employees may only be sued in their official
capacity, because employers alone are liable for Title VII violations.”); Di Lella v. Univ. of D.C.
David A. Clarke Sch. of Law, 570 F. Supp. 2d 1, 7 n.8 (D.D.C. 2008) (“[T]here is no individual
liability under the ADA or the Rehabilitation Act.”); accord Richardson v. Yellen, No. 14-1673,
49
in Count 21 relies on the same conspiracy allegations he asserted in the context of a
discrimination claim. Compare id. ¶¶ 207–08 (alleging that “conspiracy, collusion and
machination between . . . agencies” is evidence of infliction of emotional distress), with id.
¶¶ 197–206 (alleging discriminatory conspiracy), and Defs.’ Facts Ex. W, at 2, ECF No. 30-23
(showing that Dr. Coulibaly alleged, in the context of an administrative discrimination
complaint, that the Department of State conspired with the MSPB).
Because Dr. Coulibaly’s tort and contract claims derive from the same facts as his Title
VII claims, Title VII would preempt consideration of those claims against individual defendants
in their personal capacities. See Mathis, 243 F.3d at 450 (explaining that the Supreme Court’s
holding in Brown v. GSA, 425 U.S. 820 (1976), prevents courts from allowing a plaintiff to sue a
supervisor “individually, for the consequences of the same acts that [he] alleges to be
[discrimination] under federal law”); cf. id. (“The situation would be different if [the plaintiff]
were relying on altogether different incidents to support [his] state-law claims, with no intention
of using evidence of the same incidents to prove . . . the Title VII [claims] . . . .”). Thus, even if
all the individual defendants were properly served, Dr. Coulibaly’s tort and contract claims
against them could not proceed.
2016 WL 890570, at *9 (D.D.C. Mar. 8, 2016) (discussing the Rehabilitation Act); Hillware v.
Snyder, 151 F. Supp. 3d 154, 157–58 (D.D.C. 2015) (discussing Title VII); cf. Compl. ¶ 147
(alleging Title VII, ADA, and Rehabilitation Act violations in Count 16 of the complaint). And
to the extent that Dr. Coulibaly seeks to bring claims under 5 U.S.C. § 2302(b) or 5 C.F.R.
§ 1201.56, those authorities do not contain a private right of action. See 5 U.S.C. § 2302(b)(1)
(prohibiting discrimination in federal employment, but without establishing a right to sue); 5
C.F.R. § 1201.56 (discussing the burden of proof in MSPB administrative cases); cf. Compl.
¶ 147 (alleging violations under these authorities in Count 16 of the complaint).
50
* * *
None of Dr. Coulibaly’s tort or contract claims are legally cognizable against individual
defendants in their personal capacities, even if Dr. Coulibaly had properly served them. And, as
discussed earlier, those claims also cannot proceed against the United States or against individual
defendants in their official capacities. See supra Part III.B.2. The Court will accordingly
dismiss in their entirety Counts 7–11, Count 16, Count 21, and the first “Count 19” in
Dr. Coulibaly’s complaint, to the extent that those claims allege tort or contract claims.
C. Title VII
The Court now turns to those of Dr. Coulibaly’s claims that could be construed to allege
claims under Title VII of the Civil Rights Act of 1964. The following counts of the complaint
appear to request relief under Title VII:
(1) Count 1, which alleges discrimination based on FSI’s failure to hire
Dr. Coulibaly on June 15, 2007, see Compl. ¶¶ 97–98;
(2) Count 2, which alleges discrimination based on FSI’s failure to promote
Dr. Coulibaly on June 15, 2007, see id. ¶ 99;
(3) Count 3, which alleges “discrimination based on race and color” generally, see
id. ¶¶ 100–01;
(4) Count 4, which alleges disparate-treatment discrimination in connection to
FSI’s choice “to hire another teacher with less seniority, less experience, [and]
less education,” id. ¶¶ 102–03;
(5) Count 5, which alleges reprisal and retaliation in “violation of Title VII . . . as
well [as] the First Amendment” based on Dr. Coulibaly’s “political activities
related to his country of origin,” id. ¶¶ 104–05;
51
(6) Count 6, which alleges a “hostile and abusive working environment . . . in
violation of Title VII,” id. ¶¶ 106–07;
(7) Count 13, which alleges wrongful discharge, see id. ¶¶ 127–29;
(8) Count 14, which concerns Dr. Coulibaly’s “third EEOC complaint of retaliation
and discrimination,” id. ¶¶ 130–139;
(9) Count 15, which alleges that MSPB judges committed conspiracy in violation of
42 U.S.C. § 1985, see id. ¶¶ 140–42;33
(10) Count 16, which asks the Court to review his retaliation claims relating to
events that occurred in 2009, see id. ¶¶ 143–64; and
(11) Count 20, which broadly alleges conspiracy, due process violations, abuse of
process, procedural error, retaliation, discrimination, and infliction of emotional
distress under 42 U.S.C. § 1985, see id. ¶¶ 197–206.
The Court reviews the applicable legal standard before turning to the merits of these claims.
Legal Standard
When, on a motion to dismiss, “matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for summary judgment under Rule 56”
and the parties “must be given a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d). Here, both parties have submitted evidence
outside the pleadings in support of their positions, and they rely on them when discussing
33
Although Count 15 seeks to bring a claim under 42 U.S.C. § 1985, the claim asserted
appears to derive from the same facts as Count 14, which explicitly alleges retaliation and
discrimination. See Compl. ¶¶ 130–42. The Court therefore addresses both counts within Title
VII’s conceptual framework. See generally Kizas v. Webster, 707 F.2d 524, 542 (D.C. Cir.
1983) (“The Title VII remedy declared exclusive for federal employees in Brown v. GSA
precludes actions against federal officials . . . under other federal legislation.”).
52
Dr. Coulibaly’s Title VII claims. See, e.g., Defs.’ Mem. 11–23; Pl.’s Resp. ¶¶ 9–16. And
though it is improper to convert a Rule 12(b)(1) motion to dismiss for lack of subject-matter
jurisdiction into a motion for summary judgment, see Ord v. Dist. of Columbia, 587 F.3d 1136,
1140 (D.C. Cir. 2009), Defendants’ arguments about Dr. Coulibaly’s Title VII claims do not
assert that this Court lacks jurisdiction over those claims, see Def.’s Mem. 8 (acknowledging
Title VII claims against Secretary Kerry in his official capacity); see also id. at 32–40
(addressing the substance of the claims). Therefore, the Court considers Defendants’ substantive
Title VII arguments under the Rule 56 legal standard applicable to motions for summary
judgment.
Given that Defendants’ motion comes before discovery has commenced in this case, the
Court pays special heed to the principle that, typically, “summary judgment may not be granted
until all parties have had a full opportunity to conduct discovery.” United States ex rel. Folliard
v. Gov’t Acquisitions, Inc., 764 F.3d 19, 25 (D.C. Cir. 2014) (internal quotation marks omitted)
(quoting Convertino v. U.S. Dep’t of Justice, 684 F.3d 93, 99 (D.C. Cir. 2012)). This principle is
particularly relevant in a Title VII case, where “discovery may even uncover direct evidence of
discrimination, thus entirely eliminating the need to prove a prima facie case.” Chappell-
Johnson v. Powell, 440 F.3d 484, 488–89 (D.C. Cir. 2006). Nonetheless, to analyze whether
pre-discovery summary judgment might be proper here, the Court will analyze Defendants’
arguments on their merits, using the legal standard applicable to Rule 56 motions for summary
judgment. Cf. Info. Handling Servs., Inc. v. Def. Automated Printing Servs., 338 F.3d 1024,
1032 (D.C. Cir. 2003) (explaining that summary judgment “ordinarily” is proper only after
discovery (quoting Americable Int’l, Inc. v. Dep’t of Navy, 129 F.3d 1271, 1274 (D.C. Cir.
1997))).
53
Under Rule 56 of the Federal Rules of Civil Procedure, a court must grant summary
judgment if “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A “material” fact is
one capable of affecting the substantive outcome of the litigation. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is enough evidence for a
reasonable jury to return a verdict for the non-movant. See Scott v. Harris, 550 U.S. 372, 380
(2007). The inquiry under Rule 56 is essentially “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477 U.S. at 251–52.
The principal purpose of summary judgment is to determine whether there is a genuine
need for trial by disposing of factually unsupported claims or defenses. See Celotex Corp. v.
Catrett, 477 U.S. 317, 323–24 (1986). The movant bears the initial burden of identifying
portions of the record that demonstrate the absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1); Celotex, 477 U.S. at 323. In response, the non-movant must point to
specific facts in the record that reveal a genuine issue that is suitable for trial. See Fed. R. Civ. P.
56(c)(1); Celotex, 477 U.S. at 324. The non-movant may not rest upon mere allegations or
denials but must instead present affirmative evidence. Laningham v. U.S. Navy, 813 F.2d 1236,
1241 (D.C. Cir. 1987) (citing Anderson, 477 U.S. at 256–57).
In considering a motion for summary judgment, a court must “eschew making credibility
determinations or weighing the evidence.” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir.
2007). All underlying facts and inferences must be analyzed in the light most favorable to the
non-movant. See Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered
54
without any evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton,
164 F.3d 671, 675 (D.C. Cir. 1999).
Proper Defendant
Before proceeding, the Court discusses whether Dr. Coulibaly may pursue any Title VII
claims brought against defendants other than Secretary Kerry, given that Dr. Coulibaly states that
he sues all the defendants—save Secretary Kerry—in their personal and professional capacities.
Pl.’s Resp. ¶ 155. The head of the agency is the only proper defendant in a Title VII action. 42
U.S.C. § 2000e-16(c); Davis v. Califano, 613 F.2d 957, 958 n.1 (D.C. Cir. 1980); Davis v.
Geithner, 919 F. Supp. 2d 8, 16 (D.D.C. 2013). “[W]hile a supervisory employee may be joined
as a party defendant in a Title VII action, that employee must be viewed as being sued in his [or
her] capacity as the agent of the employer, who is alone liable for a violation of Title VII.” Gary
v. Long, 59 F.3d 1391, 1399 (D.C. Cir. 1995). Moreover, Title VII does not impose liability on
individuals in their personal capacities; a claim against a supervisor “essentially merges” with
any claim against the employer itself. Id. For this reason, the Court will permit only
Dr. Coulibaly’s Title VII claims against Secretary Kerry in his official capacity to proceed, and
the Court will dismiss Dr. Coulibaly’s Title VII claims against the other defendants.
Exhaustion
For the Title VII claims against Secretary Kerry, the Court must undertake an additional
preliminary analysis. Because Defendants contend that the Court should dismiss many of
Dr. Coulibaly’s Title VII claims because he failed to exhaust administrative remedies, see Defs.’
Mem. at 10–11, 14 n.7, the Court addresses exhaustion before addressing the merits of the Title
VII claims.
55
A federal employee seeking to bring a claim under Title VII must first exhaust his
administrative remedies. See 42 U.S.C. § 2000e-16(c) (stating that plaintiffs may bring suit only
(1) “[w]ithin 90 days of receipt of notice of final action taken by a department, agency, or
unit . . . , or by the [EEOC] upon an appeal from a decision or order of such department, agency
or unit” or (2) “after one hundred and eighty days from the filing of the initial charge with the
department, agency, or unit or with the [EEOC]”); Scott v. Johanns, 409 F.3d 466, 468 (D.C. Cir.
2005) (“[B]efore filing suit, an individual alleging that a federal agency engaged in employment
discrimination must seek administrative adjudication of the claim.”). Additionally, the employee
must contact an EEO counselor within forty-five days of the alleged discriminatory action. See
29 C.F.R. § 1614.105(a)(1); accord Greer v. Paulson, 505 F.3d 1306, 1316–17 (D.C. Cir. 2007).
That initial contact with a counselor triggers a set of events leading to a final agency
action, after which the employee (if displeased with that action) may file suit in federal district
court. See 29 C.F.R. § 1614.105(d)–(f) (stating that the EEO counselor must give the employee
notice of his right to file an administrative discrimination complaint with the employing agency);
id. § 1614.110 (describing final actions that agencies may take with respect to their employees’
administrative discrimination complaints); id. § 1614.407(a) (stating that employees may file suit
in federal district court ninety days after a final agency action). If the agency does not take
action within 180 days after an employee files a discrimination complaint with the agency, then
the employee may file suit in federal district court regardless. See id. § 1614.407(b). In any civil
action, a plaintiff must restrict his claims to those that are “like or reasonably related to”
allegations made before an administrative body. Park v. Howard Univ., 71 F.3d 904, 907 (D.C.
Cir. 1995) (internal quotation mark omitted) (quoting Cheek v. W. & S. Life Ins. Co., 31 F.3d
497, 500 (7th Cir. 1994)).
56
A plaintiff may escape the forty-five-day time limit for contacting an EEO counselor in
two ways. First, the agency must extend the forty-five-day time limit in certain circumstances:
(1) when the employee “shows that he . . . was not notified of the time limits and was not
otherwise aware of them,” (2) when the employee “did not know and reasonably should not
have . . . known” that the alleged discriminatory action had occurred, or (3) when “despite due
diligence he . . . was prevented by circumstances beyond his . . . control from contacting the
counselor within the time limits.” See 29 C.F.R. § 1614.105(a)(2). Second, the time limits
applicable to plaintiffs’ exhaustion responsibilities are separately subject to equitable doctrines,
such as tolling and estoppel. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002); accord 29 C.F.R. § 1614.604(c). Generally, courts allow tolling “only in extraordinary
and carefully circumscribed instances.” Dyson v. Dist. of Columbia, 710 F.3d 415, 421 (D.C.
Cir. 2013) (internal quotation marks omitted) (quoting Smith–Haynie v. Dist. of Columbia, 155
F.3d 575, 579–80 (D.C. Cir. 1998)). The plaintiff must show “(1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented
timely filing.” Id. (alterations omitted) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010)).
The Court applies these principles to Dr. Coulibaly’s Title VII claims, grouped by time
period. The Court begins with claims relating to the Department’s decision not to hire
Dr. Coulibaly in 2007, asserted in Counts 1–5 of the Complaint. See Compl. ¶¶ 97–105.34 The
34
Although the complaint describes “Count 3” and its claim of “discrimination based on
race and color” broadly, without confining Count 3 to any particular adverse employment action,
Count 3 appears alongside claims made with respect to FSI’s failure to hire Dr. Coulibaly in
2007. See Compl. ¶¶ 97–103. The Court will therefore analyze Count 3 in the context of claims
made about the FSI’s actions in 2007, as Defendants do in their motion. See Defs.’ Mem. 10.
To the extent that Count 3 alleges wrongdoing with respect to Dr. Coulibaly’s later employment
or his ultimate termination, the Court analyzes those claims in the context of Dr. Coulibaly’s
hostile work environment claim (Count 6 of the complaint), see Compl. ¶¶ 106–07, or in the
57
Court then analyzes whether Dr. Coulibaly exhausted his administrative remedies for claims
relating to the Department’s decision not to hire him in 2009, asserted in Count 16. See id.
¶ 161.35 And the Court also briefly discusses whether Dr. Coulibaly exhausted administrative
remedies for (1) his hostile work environment claim, asserted in Count 6, see id. ¶¶ 106–07;
(2) his wrongful discharge claim relating to his termination in 2012, asserted in Count 13, see id.
¶¶ 127–29; and (3) his claims relating to events after his termination, asserted in Counts 14–15
and 20, see id. ¶¶ 130–42, 197–206.
a. Failure to Hire or Promote in 2007
Dr. Coulibaly’s claims in Counts 1–5 of his complaint allege that he was subjected to
discrimination on the basis of race, color, and national origin because FSI did not hire or promote
him in 2007. Id. ¶¶ 97–105. But the record indicates that only one of Dr. Coulibaly’s
administrative complaints against the Department of State related to events that occurred in
2007, and that complaint merely alleges discrimination based on the Department of State’s
context of Dr. Coulibaly’s wrongful discharge claim (Count 13 of the complaint), see id.
¶¶ 127–29.
Likewise, because Count 4 appears to allege disparate-treatment discrimination based on
the same failure to hire discussed in Counts 1 and 2 of the complaint, see id. ¶¶ 97–99
(discussing failure to hire or promote in 2007), the Court discusses it in the context of the claims
related to FSI’s actions in 2007.
Count 5 similarly appears to allege a Title VII violation based on the same 2007 events.
Those events included discussions about Dr. Coulibaly’s political speech. See supra Part II.A.2.
Given that Count 5 primarily focuses on that political speech, Count 5’s allusion to a Title VII
violation appears to, like Counts 1–4, derive from events that occurred in 2007. Because
Dr. Coulibaly alleges both Title VII and First Amendment retaliation in Count 5, see Compl.
¶ 105, the Court addresses Count 5 under both bodies of law.
35
Although Count 16 generally alleges tort claims, claims under the FTCA, and
violations of various federal statutes, see Compl. ¶¶ 144–47, Dr. Coulibaly asks the Court to
review Title VII claims related to 2009 events in a paragraph within Count 16. See Compl.
¶ 161. The Court therefore addresses Count 16 in the Title VII context, as well as in the tort and
contract context.
58
submission of a 2007 hiring document to the MSPB. See supra Part II.C (discussing
Dr. Coulibaly’s discrimination claim with the Department of State filed under EEO Case
Number DOS-F-119-13); see also Defs.’ Facts Ex. V, ECF No. 30-22 (discussing the claim in
the Department’s dismissal letter). The submission of a 2007 hiring document during a later
MSPB investigation is not connected to claims of discriminatory failure to promote or hire in
2007. Because Dr. Coulibaly did not submit an administrative claim encompassing his actual
non-selection for a position in 2007, Dr. Coulibaly failed to exhaust available administrative
remedies on Counts 1–5 of the complaint, and the Court must enter judgment for Defendants on
those counts, to the extent that they raise Title VII claims. See Park, 71 F.3d at 907–08; Massey
v. Gray, 85 F. Supp. 3d 104, 108 (D.D.C. 2015).
b. Failure to Hire or Promote in 2009
Within Count 16 of his complaint, Dr. Coulibaly asks the Court to review his retaliation
claims relating to events occurring in 2009. See Compl. ¶ 161. In doing so, Dr. Coulibaly
concedes that he did not timely bring those claims to the Department’s attention. See id.; see
also Formal Compl. of Discrimination, EEO Investigation Report at 62–64, ECF No. 36-3
(bringing the claims before the Department in 2011). But Dr. Coulibaly contends that “he had
valid excuses” for this delay, because he “was not aware of his rights and was in fear of [losing]
his job.” Compl. ¶ 161. Disagreeing, Defendants argue that Dr. Coulibaly’s excuses do not
entitle him to revive his untimely claims. See Defs.’ Mem. at 14–17.
In this circuit, courts toll time limits in Title VII cases “when complainants neither knew
nor had reason to know about the limit.” Dyson v. Dist. of Columbia, 710 F.3d 415, 421 (D.C.
Cir. 2013) (quoting Bowden v. United States, 106 F.3d 433, 438 (D.C. Cir. 1997)). This
principle aligns with the regulation that governs agencies’ initial administrative processing of
59
discrimination and retaliation complaints. That regulation directs agencies to “extend the 45-day
time limit” for complainants to initiate contact with the agency when the complainant “shows
that he or she was not notified of the time limits and was not otherwise aware of them.” 29 C.F.R.
§ 1614.105(a)(2); see also Harris v. Gonzales, 488 F.3d 442, 444–46 (D.C. Cir. 2007) (tolling the
forty-five-day limit based on the language of the regulation). Here, Dr. Coulibaly alleges that he
“was not aware of his rights” because, as a contractor in 2009, he received no training about
equal employment opportunity laws. Compl. ¶ 161. Given that the non-movant’s evidence must
be believed on summary judgment, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986),
Dr. Coulibaly has made a preliminary showing that he “neither knew nor had reason to know”
about the applicable time limit, Dyson, 710 F.3d at 421 (quoting Bowden, 106 F.3d at 438).
Defendants do not rebut this showing by arguing that “subjective ignorance alone does
not automatically entitle [Dr. Coulibaly] to the exception.” Defs.’ Mem. at 16 (internal quotation
mark omitted) (quoting Johnson v. Runyon, 47 F.3d 911, 918 (7th Cir. 1995)). Although they
appear to argue that the Court should impute constructive notice to Dr. Coulibaly because “he
worked for the agency for approximately 13 years,” id., Defendants do not assert the necessary
facts to allow the Court to find constructive notice. To do so, Defendants, as summary judgment
movants, must show (1) that “notification of the time requirements was provided” and (2) that
the notification was “reasonably geared to inform the complainant of the time limits.” Harris,
488 F.3d at 445 (internal quotation marks omitted) (quoting Johnson, 47 F.3d at 918). They
have done neither. See Defs.’ Mem. at 14–17. Nor do they offer any response to the notion that
Dr. Coulibaly received no training about equal employment opportunity laws during his time as a
contractor. See id.
60
On this record, the Court determines that there is at least a genuine issue of material fact
with respect to whether the forty-five-day time limit for bringing discrimination and retaliation
allegations should apply to Dr. Coulibaly. Dr. Coulibaly, a contractor for the Department in
2009, may not have received the “employee handbooks, orientation sessions, etc.” that the
Department might have customarily provided its actual employees at the time, to notify them
about their obligations under the equal employment opportunity laws. Cf. Harris, 488 F.3d at
445 (citing handbooks, orientation sessions, and the like as evidence that could be used to impute
constructive notice of the forty-five-day time limit). Because Defendants have not provided any
evidence to show that he did, the Court cannot impute constructive notice of the time limit to
Dr. Coulibaly. And because Defendants do not dispute Dr. Coulibaly’s contention that he
subjectively “was not aware of his rights,” Compl. ¶ 161; see Defs.’ Mem. 14–17, the Court
finds at least a genuine issue of fact with respect to whether Dr. Coulibaly “neither knew nor had
reason to know” about the applicable time limit. Dyson, 710 F.3d at 421 (quoting Bowden, 106
F.3d at 438).
If Dr. Coulibaly did not know about the time limit and if he never received even
constructive notice of the time limit from the Department, then the Court must toll the time
limit—at least until the point at which he received notice. Because an issue of fact precludes the
Court’s decision on this issue at this time, the Court cannot summarily determine that
Dr. Coulibaly failed to exhaust administrative remedies with respect to his 2009 claims. The
Court will therefore proceed to consider the merits of those claims. Before doing so, the Court
pauses to briefly finish its exhaustion analysis.
61
c. Hostile Work Environment, Termination in 2012, and Post-Termination Allegations
The record indicates that Dr. Coulibaly has exhausted administrative remedies for his
other discrimination claims. See Defs.’ Facts Ex. II, at 2, ECF No. 30-35 (showing that the
Department’s Office of Civil Rights agreed to process Dr. Coulibaly’s hostile work environment
claim); id. at 10 (showing that the Office agreed to process his discrimination and retaliation
claims relating to his 2012 termination); Defs.’ Facts Ex. W, ECF No. 30-23 (showing that
Dr. Coulibaly satisfied the EEO counseling requirement for his allegations related to events after
his termination). Contra Defs.’ Mem. at 30. The Court will accordingly consider those claims
on their merits as well.
Title VII Principles
Before considering the merits of Dr. Coulibaly’s Title VII claims relating to events in
2009 and later, however, the Court summarizes some governing principles. Title VII declares
that “[a]ll personnel actions affecting employees . . . in executive agencies . . . shall be made free
from any discrimination based on race . . . [or] sex . . . .” 42 U.S.C. § 2000e-16. These
provisions extend to federal employees “the full rights available in the courts as are granted to
individuals in the private sector.” Loeffler v. Frank, 486 U.S. 549, 558–59 (1988) (internal
quotation marks omitted) (quoting Chandler v. Roudebush, 425 U.S. 840, 841 (1976)). These
rights include those under Title VII’s antiretaliation provision, which “forbids employer actions
that ‘discriminate against’ an employee . . . because he has ‘opposed’ a practice that Title VII
forbids or has ‘made a charge . . . or participated in’ a Title VII ‘investigation, proceeding, or
hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42
U.S.C. § 2000e-3(a)).
62
In this circuit, two key cases outline the litigation framework for Title VII discrimination
and retaliation cases: McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); and Brady v.
Office of the Sergeant at Arms, 520 F.3d 490 (D.C. Cir. 2008). The three-part McDonnell
Douglas burden-shifting framework applies when a Title VII plaintiff offers only indirect
evidence of discrimination or retaliation at summary judgment. See Taylor v. Small, 350 F.3d
1286, 1292 (D.C. Cir. 2003) (applying the framework to a discrimination claim); Morgan v. Fed.
Home Mortg. Corp., 328 F.3d 647, 650–51 (D.C. Cir. 2003) (applying the framework to a
retaliation claim, in addition to a discrimination claim). Under McDonnell Douglas, the plaintiff
has the initial burden of production to establish a prima facie case of discrimination; if he does,
then the employer must articulate a legitimate, non-discriminatory reason for its action; and if it
does, then the plaintiff must receive an opportunity to show that the employer’s reason was a
pretextual cover for discrimination. 411 U.S. at 802–05. Although McDonnell Douglas shifts
the burden of production between the parties, the plaintiff retains the burden of persuasion. St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–08 (1993).
In the D.C. Circuit, Brady streamlines the McDonnell Douglas framework when, in
considering a motion for summary judgment, the Court immediately observes that a plaintiff
suffered an “adverse employment action” and that his employer asserted a “legitimate,
non-discriminatory reason” for the alleged discrimination or retaliation. See 520 F.3d at 494; see
also Jones v. Bernanke, 557 F.3d 670, 678–79 (D.C. Cir. 2009) (explaining that Brady’s
“principles apply equally to retaliation claims”). That is the case for most of the Title VII claims
at issue here: Dr. Coulibaly suffered adverse employment actions when FSI failed to hire him on
multiple occasions and when FSI terminated his employment. See Douglas v. Donovan, 559
F.3d 549, 552 (D.C. Cir. 2009) (listing possible adverse employment actions, and including
63
“firing” as one of them (quoting Taylor, 350 F.3d at 1293)). And Defendants have asserted
various legitimate non-discriminatory reasons for those actions. See Def.’s Mem. 13–17, 32–40.
In this case, therefore, Brady directs the Court to forgo McDonnell Douglas and instead
to resolve one central question when considering Dr. Coulibaly’s discrimination and retaliation
claims: “Has the employee produced sufficient evidence for a reasonable jury to find that the
employer’s asserted non-discriminatory or [non-retaliatory] reason was not the actual reason and
that the employer intentionally discriminated against the employee on the basis of race . . . or
national origin [or retaliated against him because of his protected Title VII activity]?” Brady,
520 F.3d at 494; see also McGrath v. Clinton, 666 F.3d 1377, 1383 (D.C. Cir. 2012) (adopting
Brady’s formulation in a retaliation case). Phrased in terms of the facts of this case, the Court
must consider whether Dr. Coulibaly has produced sufficient evidence for a reasonable jury to
find (1) that Defendants’ proffered reasons were “not the actual reason[s]” for the adverse
employment actions taken against him and (2) that FSI intentionally discriminated against
Dr. Coulibaly on the basis of his protected class, or retaliated against him because he opposed a
practice made unlawful under Title VII. To answer these questions, the Court must examine the
totality of the evidence and ask “whether the jury could infer discrimination [or retaliation] from
the combination of (1) the plaintiff’s prima facie case; (2) any evidence the plaintiff presents to
attack the employer’s proffered explanation for its actions; and (3) any further evidence of
discrimination [or retaliation] that may be available to the plaintiff . . . or any contrary evidence
that may be available to the employer.” Hamilton v. Geithner, 666 F.3d 1344, 1351 (D.C. Cir.
2012) (quoting Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1289 (D.C. Cir. 1998) (en banc)); see
64
also Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C. Cir. 2004) (adopting this
formulation for both discrimination and retaliation claims).36
Discrimination
The Court now analyzes the merits of Dr. Coulibaly’s discrimination claims, as alleged in
Counts 13, 14, 15, and 20 of his complaint.37 The Court begins with Count 13, which relates to
Dr. Coulibaly’s 2012 termination, before turning to Counts 14, 15, and 20, which all relate to
events after his termination.
a. Termination in 2012
In Count 13, Dr. Coulibaly claims that he was wrongfully discharged “in total violation
of [the Department of State’s] policy regarding termination.” Compl. ¶¶ 127–29. The Court
construes his claim to include a claim of discrimination on the basis of race, color, and national
origin. See id. ¶ 101 (alleging “discrimination based on national origin and also on race and
color”); id. ¶ 127 (incorporating previous paragraphs in Count 13); see also Pl.’s Resp. ¶ 190
(alleging “discriminatory wrongful discharge”). To assess whether to grant Defendants’ motion
for summary judgment on Dr. Coulibaly’s discriminatory discharge claim, the Court must
examine the totality of the evidence and ask “whether the jury could infer discrimination from
the combination of (1) [Dr. Coulibaly’s] prima facie case; (2) any evidence [Dr. Coulibaly]
presents to attack the [Defendants’] proffered explanation for [their] actions; and (3) any further
36
Legal principles governing Title VII hostile work environment claims are slightly
different, and the Court summarizes those later. See infra Part III.C.7.
37
Count 6 alleges hostile work environment, which the Court discusses later. See infra
Part III.C.7. Counts 13, 14, 15, and 20 appear to allege both discrimination and retaliation, so
the Court discusses them under both theories of liability. See infra Part III.C.6 (discussing
retaliation). Count 16, where it seeks review of Dr. Coulibaly’s claims relating to 2009 events,
alleges that those claims are retaliation claims. See Compl. ¶ 161. The Court accordingly
discusses the merits of those claims in the retaliation context only.
65
evidence of discrimination that may be available to [Dr. Coulibaly] . . . or any contrary evidence
that may be available to the employer.” Hamilton, 666 F.3d at 1351 (quoting Aka, 156 F.3d at
1289). Dr. Coulibaly can meet his burden of production in several ways. See Brady, 520 F.3d at
495. He can “suggest[] that the employer treated other employees of a different race, color . . . ,
or national origin more favorably.” Id. He can also point to “changes and inconsistencies in the
stated reasons for the adverse action; the employer’s failure to follow established procedures or
criteria; the employer’s general treatment of minority employees; or discriminatory statements
by the decisionmaker.” Id. at 495 n.3.
In his complaint and in his brief, Dr. Coulibaly presents evidence “to attack [the
Department of State’s] proffered explanation for its actions” and to highlight “further evidence
of discrimination.” See Hamilton, 666 F.3d at 1351 (quoting Aka, 156 F.3d at 1289).
Dr. Coulibaly correctly observes that the Defendants failed to address, in their motion and in
their reply, certain evidence within the EEO Report of Investigation that was created in response
to his 2011 discrimination complaints and that includes several of his former colleagues’
affidavits. See Defs.’ Mem. 32–35 (omitting any discussion of the affidavits on record from
Dr. Coulibaly’s former colleagues); Pl.’s Resp. ¶ 117 (accusing Defendants of “ignor[ing] the
context of facts”).38 He further observes that, because the Defendants also cited to the same EEO
Report of Investigation, they are well aware of those affidavits. See id. ¶ 185.
Upon reviewing the affidavits, the Court finds that they do at least call into question one
of FSI’s legitimate, non-discriminatory reasons for terminating Dr. Coulibaly: his alleged
38
Dr. Coulibaly often refers to an EEO Report of Investigation (“ROI”) without
identifying which EEO case to which the ROI corresponds. Given that the only EEO Report of
Investigation cited in the record is the one generated in response to EEO Case Number
DOS-F-025-12, the Court will assume that “ROI” refers to that report. See supra note 5
(describing the report).
66
“inappropriate interactions with [his] supervisors.” Defs.’ Facts Ex. I, ECF No. 30-9
(reproducing Dr. Coulibaly’s termination letter). Disagreeing with that view of Dr. Coulibaly’s
demeanor, one former colleague stated that Dr. Coulibaly “kept treating his supervisor
professionally” and “kept posting lesson plans for every week even though his lesson plans had
never satisfied his supervisor.” Cazeau Aff. ¶ Q5, EEO Investigation Report at 1339, Coulibaly
v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12. And one of his former
supervisors even noted that Dr. Coulibaly’s demeanor had consistently been commendable. See
Richards Aff. ¶ Q3, EEO Investigation Report at 1367, Coulibaly v. Kerry, No. 14-0712 (D.D.C.
Mar. 4, 2016), ECF No. 26-12 (“Dr. Coulibaly was, throughout the time I worked with him, a
consummate professional, . . . and extremely responsive to my guidance and suggestions”); see
also id. ¶ Q4, EEO Investigation Report at 1367, (“Dr. Coulibaly was not one given to
complaint, but rather to serving the needs of his students.”).
Furthermore, the affidavits, as well as other evidence in the record, support
Dr. Coulibaly’s claim that he was subjected to treatment that a reasonable juror could reasonably
infer to be discriminatory. For instance, Lucie Duran, one of Dr. Coulibaly’s former colleagues,
was sympathetic to Dr. Coulibaly’s view that LTS Fyfe, Dr. Coulibaly’s former supervisor,
“accused [Dr. Coulibaly of] hat[ing] her because her husband was from Cote d’Ivoire.” Duran
Aff. ¶ Q4.b, EEO Investigation Report at 1344, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4,
2016), ECF No. 26-12. Ms. Duran also opined that FSI management “gave unfounded reasons”
for Dr. Coulibaly’s termination. Id. ¶ Q4.c, EEO Investigation Report at 1344. And another
former colleague states that he witnessed Dr. Coulibaly being “publicly humiliated and silenced
by his supervisor.” Cazeau Aff. ¶ Q6, EEO Investigation Report at 1339–40. In further support,
Dr. Coulibaly’s former supervisor noted that, within FSI’s French section, FSI had recently
67
terminated five language teachers for “highly subjective and dubious reasons.” Richards Aff.
¶ Q3, EEO Investigation Report at 1367. These affidavits could potentially raise the inference
that LTS Fyfe may have been biased against Dr. Coulibaly based on his national origin. At a
minimum, Dr. Coulibaly should be given an opportunity to explore these issues during
discovery.
As “further evidence of discrimination,” Hamilton, 666 F.3d at 1351 (quoting Aka, 156
F.3d at 1289, 1291), Dr. Coulibaly also has evidence supporting his allegation that the
Department of State “treated other employees of a different . . . national origin more favorably,”
Brady, 520 F.3d at 495. See supra Part II.B.2 (discussing Dr. Coulibaly’s allegations about
Mr. Hmimiche’s preferential treatment). Former colleagues claim that Mr. Hmimiche, an FSI
employee with a national origin that is different from Dr. Coulibaly’s, received better treatment.
See Smith Aff. ¶ Q6, EEO Investigation Report at 1365, Coulibaly v. Kerry, No. 14-0712
(D.D.C. Mar. 4, 2016), ECF No. 26-12 (“Mr. Hmimiche . . . clear[ly] received preferential
treatment from [Director] Blake and [LTS] Fyfe as he was clearly and evidently not qualified as
a French [l]anguage instructor.”); De Launay-Fogg Aff. ¶ Q6, EEO Investigation Report at 1375,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (explaining that
Dr. Coulibaly and Mr. Hmimiche “were treated very differently”). And one former colleague
corroborates Dr. Coulibaly’s allegation that he was “singled out” for scrutiny. See Lauterbach
Aff., EEO Investigation Report at 1360, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016),
ECF No. 26-12. She confirms that, even if Dr. Coulibaly did not timely submit his syllabi at one
point, “approximately fifteen . . . instructors had not posted their current syllabi” either. Id. at
1361.
68
Based on this evidence, the Court determines that, before giving Dr. Coulibaly an
opportunity to explore his allegations during discovery, it would be inappropriate to grant
summary judgment on Dr. Coulibaly’s discrimination claims relating to his 2012 termination.
The Court accordingly will deny Defendants’ motion with respect to Count 13, to the extent that
it alleges a discriminatory discharge in violation of Title VII. The Court now turns to
Dr. Coulibaly’s other Title VII discrimination claims.
b. Post-Termination Allegations
Counts 14, 15, and 20 of Dr. Coulibaly’s complaint all allege that Defendants engaged in
unlawful activity in the course of EEOC and MSPB proceedings. Count 14 appears to seek relief
under Title VII. See Compl. ¶ 139 (seeking “all damages available under EEO laws”). Counts
15 and 20 allege violations of 42 U.S.C. § 1985, which provides a right of action to individuals
victimized by conspiracies to interfere with their civil rights. See 42 U.S.C. § 1985; Compl.
¶¶140–42 (labeling Count 15 a “Complaint Against MSPB Judges . . . for Conspiracy and
Collusion with [the] Department of State to Defraud Plaintiff and Violate His Rights in Violation
of . . . 42 U.S.C. [§] 1985(3)”); id. ¶ 197 (labeling Count 20 “Conspiracy under color of law, . . .
42 [U.S.C. §] 1985(3)”).
The Court need only address these claims briefly, because there is no cause of action
against the EEOC or against the MSPB for their processing of discrimination allegations. See
Woodruff v. McPhie, 383 Fed. App’x 5, 6–7 (D.C. Cir. 2010); Smith v. Casellas, 119 F.3d 33, 34
(D.C. Cir. 1997); accord Grant v. Dep’t of the Treasury, No. 15-1008, 2016 WL 3365388, at *4
(D.D.C. June 16, 2016); Harrigan v. Yang, No. 15-0511, 2016 WL 593447, at *8 (D.D.C. Feb.
12, 2016). Likewise, 42 U.S.C. § 1985(3) “may not be invoked to redress violations of Title
69
VII.” Great Am. Fed. Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 378 (1979); accord Rogler v.
Biglow, 610 F. Supp. 2d 103, 105 (D.D.C. 2009).
Instead of a right to sue the processing agencies under Title VII or under 42 U.S.C.
§ 1985, Title VII and other governing statutes provide an adequate remedy for Dr. Coulibaly’s
allegations of wrongdoing: de novo review in federal court. See Wright v. Dominguez,
No. 04-5055, 2004 WL 1636961, at *1 (D.C. Cir. July 21, 2014) (explaining that “de novo
review provides an adequate remedy . . . for complaints about the EEOC’s administrative
process”); see also 5 U.S.C. § 7703(c) (explaining that, “in the case of discrimination” brought
on appeal from the MSPB, “the employee . . . shall have the right to have the facts subject to trial
de novo by the reviewing court); Novotny, 442 U.S. at 376–78 (discussing Title VII’s “exclusive
remedy for employment discrimination claims” as reason to hold that “deprivation of a right
created by Title VII cannot be the basis for a cause of action under §1985(3)”). Because of the
opportunity for de novo review, “parties suffer no harm if [an administrative agency] conducts an
imperfect investigation or inquiry, and consequently have no need to sue the agency for
negligence or malfeasance in the processing of claims.” Harrigan, 2016 WL 593447, at *8
(internal quotation marks omitted) (quoting Bagenstose v. Dist. of Columbia, 503 F. Supp. 2d
247, 255 (D.D.C. 2007)).
Here, Dr. Coulibaly’s Counts 14, 15, and 20 request that the Court review federal
agencies’ handling of his discrimination allegations. See Compl. ¶¶ 130–42, 197–206. As stated
in the authorities discussed above, the Court cannot do so—it may only review de novo
Dr. Coulibaly’s Title VII claims which were the subject of the investigations with which he
alleges the agencies conspired to interfere. Because the law does not allow Dr. Coulibaly to seek
relief under an independent cause of action for the EEOC, the Department of State, and the
70
MSPB’s processing of his discrimination allegations, the Court will dismiss Counts 14, 15, and
20 of Dr. Coulibaly’s complaint.
* * *
Out of Dr. Coulibaly’s claims alleging discrete acts of discrimination for which he
exhausted administrative remedies, only Dr. Coulibaly’s discrimination claim relating to his
2012 termination can proceed. See Compl. ¶¶ 127–29 (alleging discriminatory discharge in
Count 13 of Dr. Coulibaly’s complaint). The Court now turns to Dr. Coulibaly’s retaliation
claims for which he exhausted administrative remedies. See id. ¶¶ 127–42, 161, 197−206
(asserting retaliation claims in Counts 13, 14, 15, 16, and 20 of the complaint).
Retaliation
As with Dr. Coulibaly’s discrimination claims, the Court addresses Dr. Coulibaly’s
retaliation claims grouped by time period. The Court begins by addressing Dr. Coulibaly’s
retaliation allegations relating to 2009 events, as asserted in Count 16 of his complaint. See id.
¶ 161. The Court then addresses whether Dr. Coulibaly may proceed to litigate the claim,
asserted in Count 13 of his complaint, that his 2012 termination was retaliatory (in addition to
the claim that his 2012 termination was discriminatory). See id. ¶ 128.
The Court will not, however, engage in further discussion of Dr. Coulibaly’s allegations
of agency wrongdoing during the time after his termination, as asserted in Counts 14, 15, and 20
of his complaint. See Compl. ¶¶ 130−42, 197−206. As discussed above, those allegations of
wrongdoing aimed at the manner the various agencies processed his Title VII claims, including
the retaliation claims that the Court discusses below, are not viable. See supra Part III.C.5.b.
71
The Court accordingly does not discuss Counts 14, 15, and 20 under a retaliation theory of relief;
that theory would not change the Court’s decision to dismiss those claims.39
a. Failure to Hire or Promote in 2009
The Court need only briefly address Dr. Coulibaly’s retaliation claims relating to 2009
events, asserted in Count 16 of his complaint. See Compl. ¶ 161. In arguing for dismissal of
these claims (or for summary judgment in their favor on these claims), Defendants rest solely on
the idea that the claims are untimely. See Defs.’ Mem. at 14–17; Defs.’ Reply at 11–14. But, as
discussed earlier, the Court cannot conclude on the record presented that the claims were
untimely, and so the Court cannot conclude that Dr. Coulibaly therefore did not exhaust his
administrative remedies. See supra Part III.C.3.b. Because Defendants make no further
argument for dismissal of retaliation claims relating to 2009 events, the Court will deny
Defendants’ motion with respect to those claims and will allow the parties to explore those
claims in discovery.
b. Termination in 2012
The Court turns next to Count 13, which alleges retaliatory (as well as discriminatory)
wrongful discharge. “To prove unlawful retaliation, a plaintiff must show: (1) that he opposed a
practice made unlawful by Title VII; (2) that the employer took a materially adverse action
39
Both in his complaint and in his brief opposing summary judgment, Dr. Coulibaly
refers to due process violations in the context of retaliation. See, e.g., Compl. ¶ 128; Pl.’s Resp.
¶ 419. But, as noted above, Title VII preempts constitutional claims flowing from alleged
employment discrimination. See supra note 23. And any non-Title VII claims would be
preempted by the Civil Service Reform Act (“CSRA”), which prevents federal employees from
pursuing claims outside of the CSRA’s remedial scheme. See Elgin v. Dep’t of the Treasury,
132 S. Ct. 2126, 2133 (2012); United States v. Fausto, 484 U.S. 439, 455 (1988); see also
Fornaro v. James, 416 F.3d 63, 66–67 (D.C. Cir. 2005) (“[S]o far as review of determinations
under the CSRA is concerned, what you get under the CSRA is what you get.”). Therefore, the
Court does not address any Fifth Amendment due process violations.
72
against him; and (3) that the employer took the action ‘because’ the employee opposed the
practice.” McGrath v. Clinton, 666 F.3d 1377, 1380 (D.C. Cir. 2012); see also id. at 1380 n.3
(explaining that, “[a]lthough these [elements] are often described as the elements that a plaintiff
must show to establish a ‘prima facie’ case of retaliation, . . . they are also the elements that a
plaintiff must ultimately prove in order to win his case” (citation omitted)).
For his retaliatory discharge claim, Dr. Coulibaly easily establishes the first two elements
of a Title VII retaliation claim. With respect to the first element, he opposed a practice made
unlawful by Title VII when he made contact with the Department of State’s Office of Civil
Rights and filed an informal discrimination complaint in November 2011. See Compl. ¶ 95
(stating that Dr. Coulibaly filed an informal EEO complaint on November 23, 2011). See
generally 42 U.S.C. § 2000e-3(a) (stating that employers may not retaliate against an employee
because “he has made a charge” of discrimination); Borgo v. Goldin, 204 F.3d 251, 255 & n.4
(D.C. Cir. 2000) (indicating that “official EEO complaints” are protected activities under Title
VII). With respect to the second element, FSI took a materially adverse action by terminating
Dr. Coulibaly’s employment in April 2012. See Defs.’ Facts Ex. I, ECF No. 30-9 (reproducing
Dr. Coulibaly’s termination letter). See generally Baird v. Gotbaum, 662 F.3d 1246, 1248–49
(D.C. Cir. 2011) (explaining that “the ‘adverse action’ concept has a broader meaning” in the
retaliation context, so that it encompasses at least the “hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or . . . significant change in benefits”
that are adverse employment actions in the discrimination context (quoting Douglas v. Donovan,
559 F.3d 549, 552 (D.C. Cir. 2009))).
And evidence raises at least a genuine issue of fact with respect to the third and final
element of the retaliation analysis, the necessary causal link between the two preceding elements.
73
Title VII retaliation claims, unlike Title VII discrimination claims, “require proof that the desire
to retaliate was the but-for cause of the challenged employment action,” rather than merely a
“motivating factor.” Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013). To
prevail on his Title VII retaliation claim for wrongful discharge, therefore, Dr. Coulibaly must
establish that FSI’s unlawful retaliatory animus was not merely a cause of his termination, but
the cause. See Rattigan v. Holder, 982 F. Supp. 2d 69, 81 (D.D.C.2013), aff’d, 780 F.3d 413(D.C. Cir. 2015). He must prove “that the unlawful retaliation would not have occurred in the
absence of the alleged wrongful action or actions of the employer”—or, in other words, that the
retaliation would not have occurred for any reason other than the employee’s opposition to the
employer’s discriminatory conduct. Id. To meet this burden, he can offer both direct and
circumstantial evidence “from which a reasonable jury could infer the employer’s retaliatory
intent.” McGrath, 666 F.3d at 1383.
To that end, Dr. Coulibaly cites to considerable additional evidence that raises genuine
issues of material fact with respect to Defendants’ proffered non-retaliatory reasons for his
termination. For their part, Defendants rely on Dr. Coulibaly’s “outburst at the workshop
regarding the French supervisors, his refusal to follow his supervisor’s instructions regarding
classroom preparation, as well as his abuse of leave procedures” to justify his termination.
Defs.’ Mem. at 34–35; accord Defs.’ Facts Ex. I. But evidence raises genuine issues of material
fact with respect to each of these three reasons.
First, an affidavit from Dr. Coulibaly’s former colleague, Elder Cazeau, disputes the idea
that Dr. Coulibaly interrupted a training workshop with an “outburst . . . regarding the French
supervisors.” Defs.’ Mem. at 34; see Cazeau Aff. ¶ Q6, EEO Investigation Report at 1339,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12. In contrast to
74
Defendants’ claim that Dr. Coulibaly disrupted the meeting, see Defs.’ Mem. at 33–34,
Mr. Cazeau claims that Dr. Coulibaly “was publicly humiliated and silenced by his supervisor[,]
who told [Dr. Coulibaly] that he could not use the meeting as a platform to air his personal issues
and discuss his personal situation,” Cazeau Aff. ¶ Q6, EEO Investigation Report at 1339.
Second, with respect to Dr. Coulibaly’s alleged “refusal to follow his supervisor’s
instructions regarding classroom preparation,” Defs.’ Mem. at 34, affidavits support
Dr. Coulibaly’s claim that his supervisors held him to different expectations as compared other
FSI employees, see Compl. ¶ 121; accord De Launay-Fogg Aff. ¶ Q6, EEO Investigation Report
at 1374–76, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12; Smith Aff.
¶ Q6, EEO Investigation Report at 1365, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4,
2016), ECF No. 26-12. If Dr. Coulibaly was held to different expectations, then a reasonable
jury might infer that his supervisors’ “classroom preparation” expectations were merely a pretext
by which to undermine his perceived performance. Indeed, Dr. Coulibaly argues that FSI “for
several months was conspiring . . . and looking for a pretext and false accusations to fire him.”
Pl.’s Resp. ¶ 119; see also Duran Aff. ¶ Q4.c, EEO Investigation Report at 1344, Coulibaly v.
Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (stating that FSI management “gave
unfounded reasons” for terminating Dr. Coulibaly); De Launay-Fogg Aff. ¶ Q5, EEO
Investigation Report at 1375 (“After Dr. Coulibaly started his EEO complaint, management fell
on him, [and] he was given poor performing classes to prove he was a bad teacher.”).
Third, with respect to Defendants’ claim that Dr. Coulibaly abused leave procedures,
Defendants point to only one leave request that FSI management ultimately denied: a request for
advance leave on March 29, 2012. See Defs.’ Statement ¶¶ 27–28 (noting that Dr. Coulibaly’s
“request for advance leave had been denied . . . and that [Dr. Coulibaly] needed to report to
75
work” on March 29, 2012); Defs.’ Mem. at 32–35 (identifying no additional leave requests
denied). But some evidence implies that FSI actually approved Dr. Coulibaly’s request to take
leave on March 29, 2012. See Email from Faye Hartgrove (Mar. 28, 2012), EEO Investigation
Report at 865, ECF No. 36-4 (“Your memo is approved . . . .”).
Moreover, the record suggests that, with respect to the March 29, 2012 leave request,
Dr. Coulibaly realized a procedural mistake in his initial request, intended to correct the mistake,
and communicated his intentions to his supervisor—who nonetheless chose to forward an
incomplete request to FSI management. See Email from Tiemoko Coulibaly to Philippe
Casteuble (Mar. 29, 2012), EEO Investigation Report at 867–68, ECF No. 36-4 (“I answered by
email to you [and said] that I will submit . . . the request [again] on Friday with the appropriate
memo and information. So I don’t understand why you presented this incomplete request to
HR.”); see also Email from Tiemoko Coulibaly to Philippe Casteuble (Mar. 28, 2012), EEO
Investigation Report at 866, ECF No. 36-4 (stating that Dr. Coulibaly would “give [LTS
Casteuble] the memo Friday”). And the record suggests that Dr. Coulibaly may have even gone
back to work on March 29, 2012 after finding out about the fact that he was absent without leave.
See Email from Tiemoko Coulibaly to Philippe Casteuble (Mar. 29, 2012, 3:40 PM), EEO
Investigation Report at 867 (stating that, having been informed at noon that FSI management had
denied his request for advanced sick leave, Dr. Coulibaly would “be at FSI” that day).
All this evidence raises significant questions with respect to whether unlawful Title VII
retaliation was the cause of Dr. Coulibaly’s termination. To give Dr. Coulibaly an opportunity to
explore those questions in discovery, the Court will deny Defendants’ motion for summary
judgment on Count 13, to the extent that Count 13 raises a Title VII retaliation claim in addition
to a Title VII discrimination claim.
76
Hostile Work Environment
The Court turns now to Dr. Coulibaly’s last Title VII claim. Dr. Coulibaly alleges in
Count 6 of his complaint that Defendants forced him to endure a hostile and abusive work
environment. Compl. ¶¶ 106–07. Because Dr. Coulibaly does not clearly specify whether he
brings a discriminatory hostile work environment claim or a retaliatory hostile work
environment claim, see id., the Court analyzes his claim under both theories of relief, which
share significant elements in common. See generally Faragher v. City of Boca Raton, 524 U.S.
775, 786–88 (1998) (describing discriminatory hostile work environment claims, which must
demonstrate harassment that is so severe or pervasive that it alters the conditions of
employment); Hussain v. Nicholson, 435 F.3d 359, 366–67 (D.C. Cir. 2006) (describing
retaliatory hostile work environment claims, which must also show severe or pervasive
harassment).
For a discriminatory hostile work environment claim, the plaintiff can establish a prima
facie case by showing (1) that he is a member of a protected class; (2) that he was subject to
unwelcome harassment; (3) that the harassment was because of the plaintiff’s protected status;
(4) that the harassment affected a term, condition, or privilege of employment; and (5) that his
employer knew or should have known of the harassment and failed to take action to prevent it.
Lester v. Natsios, 290 F. Supp. 2d 11, 22 (D.D.C. 2003). But for a work environment to affect a
term, condition, or privilege of employment and thereby be considered “hostile,” it must be
“permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive working
environment.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 78 (1998) (quoting
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)); accord Baloch v. Kempthorne, 550 F.3d
771191, 1201 (D.C. Cir. 2008). “The key terms . . . are ‘severe,’ ‘pervasive,’ and ‘abusive,’ as not
just any offensive or discriminatory conduct rises to an actionable hostile work environment.”
Lester, 290 F. Supp. 2d at 22 (citing Oncale, 523 U.S. at 78).
For a retaliatory hostile work environment claim, the plaintiff must make a similar
showing of severe or pervasive harassment. See Hussain, 435 F.3d at 366–67. But, instead of
establishing (1) the plaintiff’s protected class and (2) harassment because of that protected status
(elements of a discriminatory hostile work environment claim), the plaintiff must demonstrate
(1) protected EEO activity and (2) “a causal connection between the harassment [he] suffered
and [his] involvement in protected EEO activity” to establish a retaliatory hostile work
environment claim. Na’im v. Clinton, 626 F. Supp. 2d 63, 79, 81 (D.D.C. 2009); see also
Nichols v. Truscott, 424 F. Supp. 2d 124, 140–41 (D.D.C. 2006) (requiring the plaintiff to show
both (1) that “she engaged in statutorily protected activity” and (2) “a causal connection between
the harassment in question and her protected activity”).
a. Severe or Pervasive Harassment
Because both theories of relief require the plaintiff to establish that his work environment
was truly “hostile,” the Court begins by examining that element of each theory of relief. To meet
the hostility threshold, the Court must look at the totality of circumstances and examine whether
the harassment “unreasonably interferes with an employee’s work performance.” Harris, 510
U.S. at 23. “[C]onduct must be extreme to amount to a change in the terms and conditions of
employment . . . .” Faragher, 524 U.S. at 788. “[C]asual or isolated manifestations of a
discriminatory [or retaliatory] environment . . . may not raise a cause of action.” Park v. Howard
Univ., 71 F.3d 904, 906 (D.C. Cir. 1995) (quoting Bundy v. Jackson, 641 F.2d 934, 943 n.9 (D.C.
Cir. 1981)). Further, not all forms of workplace harassment are prohibited, only harassment
78
based on a person’s membership in a protected class or his protected Title VII activity. See, e.g.,
Stewart v. Evans, 275 F.3d 1126, 1133 (D.C. Cir. 2002); Na’im, 626 F. Supp. 2d at 81.
Here, the evidence on record creates at least a question of fact about whether
Dr. Coulibaly experienced such severe and pervasive harassment that it affected the terms and
conditions of his employment. Communications in 2011 and 2012 between Dr. Coulibaly and
his supervisors show that his supervisors regularly scrutinized his work, as if seeking to find fault
with it. Between August and December 2011, LTS Fyfe (Dr. Coulibaly’s supervisor at the time)
repeatedly asked Dr. Coulibaly to produce his lesson plans and class materials for her review.40
When Dr. Coulibaly would provide responses to her requests, LTS Fyfe frequently found those
responses unsatisfactory and would ask him to take further action,41 even though she later
40
The Court summarizes the relevant timeline here:
1. LTS Fyfe requested class readings from Dr. Coulibaly on August 12, 2012. See
Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 7213,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
2. She asked Dr. Coulibaly to prepare a reading lesson plan on August 19, 2011. See
Email from Laura Fyfe to Tiemoko Coulibaly (Aug. 19, 2011), EEO Investigation
Report at 733, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF
No. 26-7.
3. She asked Dr. Coulibaly to improve his reading lesson plan on August 30, 2011.
See Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 722.
4. She again requested a reading lesson plan on October 3, 2011. See id., EEO
Investigation Report at 723.
5. She contacted Dr. Coulibaly again about his reading lesson plan on November 4,
2011. See Email from Laura Fyfe to Tiemoko Coulibaly (Nov. 4, 2011), EEO
Investigation Report at 731, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4,
2016), ECF No. 26-7.
6. And she asserted at a December 14, 2011 meeting that Dr. Coulibaly had not
submitted required weekly syllabi for a period of three weeks. See Email from
Debra Blake (Dec. 15, 2011), EEO Investigation Report at 786–87, ECF No. 36-
4.
41
See, e.g., Email from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at 722–23
(characterizing Dr. Coulibaly’s lesson plan as “a template for writing a lesson plan—not an
79
admitted that her recommended lesson plan method (“the four Ps”) was not always an
appropriate approach.42 And when LTS Casteuble became Dr. Coulibaly’s supervisor in 2012, he
likewise reviewed Dr. Coulibaly’s class syllabi and found the syllabi wanting on multiple
occasions.43
Dr. Coulibaly’s supervisors’ scrutiny only continued when Dr. Coulibaly took a leave of
absence to attend to his medical issues, beginning on February 15, 2012. See Defs.’ Facts.
Ex. Q, at 1315, 1317, ECF No. 30-17 (showing that Dr. Coulibaly took a combination of sick
actual lesson plan” and seeking improvements from Dr. Coulibaly); Email from Laura Fyfe to
Tiemoko Coulibaly (Oct. 5, 2011), EEO Investigation Report at 732, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7 (confirming LTS Fyfe’s disapproval of
Dr. Coulibaly’s lesson plan); PAR Report by Laura Fyfe, EEO Investigation Report at 790, ECF
No. 36-4 (discussing Dr. Coulibaly’s lesson plans and weekly syllabi as issues with
Dr. Coulibaly’s performance).
42
See Email from Ann Keller-Lally (Nov. 9, 2011), EEO Investigation Report at 754–56,
ECF No. 36-3 (noting that, in a November 8, 2011 meeting, LTS Fyfe admitted that
Dr. Coulibaly was “rightly confused” about LTS Fyfe’s directive to use the “four P’s” method).
43
The Court summaries the timeline with respect to LTS Casteuble here:
1. LTS Casteuble reviewed Dr. Coulibaly’s syllabus and asked several questions
about it on January 24, 2012. See Email from Philippe Casteuble to Tiemoko
Coulibaly (Jan. 24, 2012), EEO Investigation Report at 829–30, ECF No. 36-4.
2. LTS Casteuble asked to talk with Dr. Coulibaly about his weekly syllabus again
on February 2, 2012. See Email from Philippe Casteuble to Tiemoko Coulibaly
(Feb. 2, 2012), EEO Investigation Report at 820, ECF No. 36-4.
3. On February 6, 2012, LTS Casteuble reminded Dr. Coulibaly about the earlier
questions that LTS Casteuble had asked about the syllabus. See Email from
Philippe Casteuble to Tiemoko Coulibaly (Feb. 6, 2012, 8:29 AM), EEO
Investigation Report at 829, ECF No. 36-4.
4. On February 10, 2012, Dr. Coulibaly received a counseling memorandum from
LTS Casteuble that again criticized Dr. Coulibaly’s syllabi. See Casteuble Mem.
(Feb. 10, 2012), Defs.’ Facts Ex. P, ECF No. 30-16. When Dr. Coulibaly
responded to LTS Casteuble’s questions about the syllabi, LTS Casteuble found
his response unsatisfactory as well. See Email from Philippe Casteuble (Feb. 13,
2012, 8:13 AM), EEO Investigation Report at 895, ECF No. 36-4 (“I see a
laundry list of activities but I still don’t see how they reinforce each other or how
they are linked with his teaching objectives.”).
80
leave, annual leave, and leave without pay for six weeks). During that time, instead of criticizing
his work, his supervisors turned their attention to his leave requests. The record shows repeated
questioning directed toward Dr. Coulibaly about his leave requests, combined with notifications
that Dr. Coulibaly was running out of the leave available to him.44 The record also shows that
LTS Casteuble at one point submitted an incomplete leave request on Dr. Coulibaly’s behalf, but
44
The Court again recounts the relevant timeline:
1. On March 1, 2012, Director Blake informed Dr. Coulibaly of his remaining
allowance of sick leave and annual leave. See Email from Debra Blake (Mar. 1,
2012), EEO Report of Investigation at 892, ECF No. 36-4.
2. On March 2, 2012, FSI Human Resources Specialist Brian Springer wrote to
Dr. Coulibaly to explain the procedures for requesting advanced sick leave, the
only type of sick leave available if Dr. Coulibaly were to exhaust his remaining
sick leave hours. See Email from Brian Springer (Mar. 2, 2012), EEO Report of
Investigation at 890–91, ECF No. 36-4; see also Springer Aff., EEO Report of
Investigation at 971, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF
No. 26-9 (noting HR Specialist Springer’s position title at FSI).
3. On March 5, 2012, LTS Casteuble contacted Dr. Coulibaly to see whether Dr.
Coulibaly knew when he planned to return to work and to clarify what type of
leave Dr. Coulibaly intended to use while he was absent. See Email from Philippe
Casteuble to Tiemoko Coulibaly (Mar. 5, 2012), EEO Report of Investigation at
887, ECF No. 36-4.
4. On March 6, 2012, LTS Casteuble wrote to Dr. Coulibaly to inform him that he
had run “completely out of sick leave” on February 23, 2012, and that he had only
“68 hours of annual leave remaining” on February 24, 2012, which would cover
Dr. Coulibaly only through March 7, 2012. See Email from Philippe Casteuble to
Tiemoko Coulibaly (Mar. 6, 2012), EEO Report of Investigation at 885, ECF
No. 36-4.
5. On March 7, 2012, HR Specialist Springer told Dr. Coulibaly that, if
Dr. Coulibaly did not provide a leave type for his ongoing absence, he would be
considered absent without official leave. See Email from Brian Springer (Mar. 7,
2012), EEO Report of Investigation at 882, ECF No. 26-8.
6. On Friday, March 9, 2012, HR Specialist Springer told Dr. Coulibaly that,
because he had not yet submitted a request for advanced leave, he was scheduled
to come to work on Monday, March 12, 2012. See Email from Brian Springer to
Tiemoko Coulibaly (Mar. 9, 2012), EEO Report of Investigation at 874, ECF
No. 36-4.
81
against Dr. Coulibaly’s wishes—which may have led to the later accusation that Dr. Coulibaly
had “fail[ed] to follow established procedures for requesting leave.”45
Dr. Coulibaly’s former colleagues corroborate the idea that Dr. Coulibaly’s supervisors
imposed exceptional scrutiny on his performance.46 Given the frequency and extent of
Dr. Coulibaly’s supervisors’ criticisms with respect to both his work and his leave requests, and
the alleged significant impact this scrutiny had on his health, the record raises sufficient
questions to merit further exploration in discovery. See Faragher, 524 U.S. at 786–88. On this
record, it would be premature to grant summary judgment on Dr. Coulibaly’s hostile work
environment claim because of a failure to demonstrate severe or pervasive harassment. Contra
Defs.’ Mem. 17–23. The Court accordingly examines, briefly, whether the evidence on record
allows Dr. Coulibaly to make the other preliminary showings required to establish either
discriminatory hostile work environment or retaliatory hostile work environment.
45
See Defs.’ Facts Ex. I, ECF No. 30-9 (citing Dr. Coulibaly’s “failure to follow
established procedures for requesting leave” as cause for his termination). But see Email from
Tiemoko Coulibaly to Philippe Casteuble (Mar. 29, 2012), EEO Investigation Report at 867–68,
ECF No. 36-4 (“I answered by email to you [and said] that I will submit . . . the request [again]
on Friday with the appropriate memo and information. So I don’t understand why you presented
this incomplete request to HR.”).
46
See Cazeau Aff. ¶ Q4, EEO Report of Investigation at 1339, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (“He was clearly the target of his
supervisor.”); Duran Aff. ¶ Q4.c, EEO Report of Investigation at 1344, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (“They gave unfounded reasons [for
Dr. Coulibaly’s termination].”); Smith Aff. ¶ Q4.c, EEO Report of Investigation at 1364–65,
Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (“[I]t [was] evident that
[Dr. Coulibaly’s supervisors were] looking for reasons to not tenure him so that they can fire
him.”); De Launay-Fogg Aff. ¶¶ Q5–Q6, EEO Report of Investigation at 1375, Coulibaly v.
Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (observing that Mr. Hmimiche was
“treated very differently” from Dr. Coulibaly).
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b. Discriminatory Hostile Work Environment
Combined with the evidence discussed above, Dr. Coulibaly presents sufficient evidence
to support a prima facie case for discriminatory hostile work environment. As noted earlier,
Dr. Coulibaly can establish a prima facie case of discriminatory hostile work environment by
showing (1) that he is a member of a protected class; (2) that he was subject to unwelcome
harassment; (3) that the harassment was because of the plaintiff’s protected status; (4) that the
harassment affected a term, condition, or privilege of employment; and (5) that his employer
knew or should have known of the harassment and failed to take action to prevent it. Lester v.
Natsios, 290 F. Supp. 2d 11, 22 (D.D.C. 2003). Dr. Coulibaly can make preliminary showings
for each of the five elements.
First, as someone from the Ivory Coast, see Compl. ¶ 19, he can assert a protected class
based on his national origin. Second, as discussed above, evidence in the record indicates that
Dr. Coulibaly was subject to unwelcome harassment through his supervisors’ scrutiny of his
work and leave requests. See supra Part III.C.7.b. Third, some evidence supports
Dr. Coulibaly’s assertion that, because LTS Fyfe’s ex-husband was Ivorian like Dr. Coulibaly,
she engaged in some of these hostilities because of Dr. Coulibaly’s national origin. See Email
from Tiemoko Coulibaly (Nov. 15, 2011), EEO Investigation Report at 744, ECF No. 36-3
(noting that during a meeting, LTS Fyfe had accused Dr. Coulibaly of “‘discrimination’ ‘against’
her because of her ‘background’ and because her ‘former husband’ was ‘Ivorian’ (like
[Dr. Coulibaly])” (emphasis added)); Email from Laura Fyfe to Debra Blake (Nov. 15, 2011),
EEO Investigation Report at 743, ECF No. 36-3 (admitting that LTS Fyfe “did ask
[Dr. Coulibaly] if he had an ax to grind against [her] because of [her] ex”). Fourth, as discussed
above, Dr. Coulibaly facially shows that the alleged harassment was so severe that it affected the
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conditions of his employment. See supra Part III.C.7.a. Finally, the record indicates that FSI
knew or should have known about the hostile work environment, because Dr. Coulibaly made
several attempts to alert FSI management to his situation—not least of which was his EEO
complaint in early 2012 that alleged that “[he was] subjected to a hostile work environment
characterized by, but not limited to, false accusations and inappropriate comments.” See Letter
from Jenniffer J. De Heer to Tiemoko Coulibaly (Jan. 17, 2012), EEO Investigation Report at
185, ECF No. 36-3 (accepting Dr. Coulibaly’s hostile work environment allegation for
investigation). Although this evidence is not overwhelming, it is sufficient to allow Plaintiff to
proceed to discovery.
On this record, it would be inappropriate to enter summary judgment for Defendants on
any discriminatory hostile work environment claim alleged in Count 6 of Dr. Coulibaly’s
complaint. The Court therefore denies Defendants’ motion for summary judgment on that claim,
to allow the parties to explore it in discovery.
c. Retaliatory Hostile Work Environment
The evidence on record also contains the preliminary showings necessary to allow
Dr. Coulibaly to litigate a retaliatory hostile work environment claim. To prevail on that claim,
Dr. Coulibaly must establish not just severe or pervasive harassment, but also (1) protected EEO
activity and (2) “a causal connection between the harassment [he] suffered and [his] involvement
in protected EEO activity.” Na’im v. Clinton, 626 F. Supp. 2d 63, 79, 81 (D.D.C. 2009). For
both additional elements, sufficient evidence exists to raise issues for the parties to explore in
discovery.
As for his retaliation claim based on his eventual termination, Dr. Coulibaly can establish
protected EEO activity by reference to his informal discrimination complaint, filed with the
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Department of State in November 2011. See Compl. ¶ 95 (stating that Dr. Coulibaly filed an
informal EEO complaint on November 23, 2011). And at least one of his former colleagues
corroborates his view that his EEO complaint prompted his supervisors’ harassment. See
De Launay-Fogg Aff. ¶¶ Q5–Q6, EEO Report of Investigation at 1375, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12 (noting how, “[a]fter Dr. Coulibaly started
his EEO complaint, management fell on him”); see, e.g., Email from Tiemoko Coulibaly (Dec.
27, 2011), EEO Investigation Report at 788–89, ECF No. 36-4 (alleging that Dr. Coulibaly’s
December 2011 performance appraisal report was “evidence of retaliation” and that Director
Blake and LTS Fyfe could not “separate performance evaluation from discrimination and
retaliation against” Dr. Coulibaly). Moreover, Defendant’s statements that his complaints of
discrimination may amount to insubordination also evidences potential hostility to protected
activities. The record thus presents genuine issues with respect to a retaliatory hostile work
environment claim. The Court accordingly also denies summary judgment on Count 6, to the
extent that it alleges a retaliatory hostile work environment, so that the parties may explore that
claim in discovery.
* * *
In sum, the Court will grant Defendants’ motion with respect to Counts 1, 2, 3, 4, 6, 13,
14, 15, 16, and 20, to the extent that they allege Title VII violations, with the exception of
Counts 6, 13, and 16 as asserted against Secretary Kerry. The Court will deny the motion with
respect to Count 6, which alleges hostile work environment, see Compl. ¶¶ 106–07; Count 13,
which alleges wrongful discharge, see id. ¶¶ 127–29; and Count 16, which seeks review of
Dr. Coulibaly’s retaliation claims relating to 2009 events, see id. ¶ 161.
85
D. Rehabilitation Act
The Court next addresses Dr. Coulibaly’s claim, asserted in Count 18 of his complaint,
which alleges that FSI denied his request for a reasonable accommodation. See Compl.
¶¶ 177–83. Because Defendants’ arguments about Count 18 rely on evidence aside from
Dr. Coulibaly’s complaint, see Defs.’ Mem. at 23–26, the Court applies the legal standard for
motions for summary judgment under Rule 56. See supra Part III.C.1 (describing that legal
standard).47
In Count 18 of his complaint, Dr. Coulibaly asserts that the Department of State failed to
grant his request for a reasonable accommodation in the form of a change in supervisor. See
Compl. ¶¶ 177–83. Although the language in Dr. Coulibaly’s complaint is unclear, Defendants
surmise that his reasonable accommodation claim falls under the Rehabilitation Act. See Defs.’
Mem at 24 & n.14. Because “[t]he Rehabilitation Act of 1973 governs employee claims of
handicap discrimination against the Federal Government,” the Court agrees. Barth v. Gelb, 2
F.3d 1180, 1183 (D.C. Cir. 1993); cf. Klute v. Shinseki, 797 F. Supp. 2d 12, 17 (“[T]he
47
Although it is improper to convert a Rule 12(b)(1) motion to dismiss for lack of
subject-matter jurisdiction into a motion for summary judgment, see Ord v. Dist. of Columbia,
587 F.3d 1136, 1140 (D.C. Cir. 2009), Defendants’ arguments about Count 18 do not assert that
this Court lacks jurisdiction over the claim. Defendants instead merely assert that
Dr. Coulibaly’s “failure to accommodate claim was not properly exhausted.” Defs.’ Mem. at 25.
And though the Court may lack jurisdiction to decide Rehabilitation Act claims for which the
plaintiff has not filed or obtained a final disposition on an administrative complaint, see Spinelli
v. Goss, 446 F.3d 159, 162 (D.C. Cir. 2006), the D.C. Circuit has expressly held that “the
deadline for contacting an EEO Counselor [under the Rehabilitation Act] is not jurisdictional.”
Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015). Here, the record indicates that
Dr. Coulibaly has filed an administrative complaint with respect to his disability discrimination
claim, which the Department of State later dismissed because Dr. Coulibaly did not bring his
claims to the attention of an EEO counselor within the forty-five-day time limit. See Pl.’s Resp.
Ex., at 56–60, ECF No. 36-2 (reproducing the dismissal letter). Because Dr. Coulibaly has filed
an administrative complaint and has obtained a final disposition on it, the Court has jurisdiction
to adjudicate the disability discrimination claim now. Defendants’ exhaustion argument
accordingly is not one raised on jurisdictional grounds.
86
[Americans with Disabilities Act] does not apply to employees of the federal government . . . .”
(citing 42 U.S.C. § 12111(5)(B)(i))).
Defendants argue that Dr. Coulibaly has failed to exhaust administrative remedies with
respect to his claim that FSI denied him a reasonable accommodation. See Defs.’ Mem. at
23–25. Their argument relies on a valid legal premise: a plaintiff may file a Rehabilitation Act
claim in federal court only after he exhausts his administrative remedies. See Spinelli v. Goss,
446 F.3d 159, 162 (D.C. Cir. 2006) (citing 29 U.S.C. § 794a(a)(1)). As is the case for Title VII
claims, plaintiffs must exhaust administrative remedies for their Rehabilitation Act claims by
bringing them to the attention of an EEO counselor within forty-five days of the alleged
discriminatory action. See 29 C.F.R. § 1614.105(a) (“Aggrieved persons who believe they have
been discriminated against on the basis of . . . disability . . . must initiate contact with a
Counselor within 45 days of the date of the matter alleged to be discriminatory . . . .”); accord
Lenkiewicz v. Castro, 146 F. Supp. 3d 99, 108 (D.C. Cir. 2007).
But Defendants are incorrect when they argue that, before filing his third amended
complaint, Dr. Coulibaly never claimed any form of discrimination on the basis of disability.
Defs.’ Mem. at 24–25. To the contrary, Dr. Coulibaly has produced evidence showing that he
filed a formal administrative complaint with the Department of State that alleged disability
discrimination. See Pl.’s Resp. Ex., at 56, ECF No. 36-2. The Department dismissed the
administrative complaint on October 13, 2015. See id. at 56–60 (reproducing the dismissal
letter). The Court therefore cannot dismiss Dr. Coulibaly’s Rehabilitation Act claim because he
never sought administrative relief.
The Court can, however, consider whether Dr. Coulibaly timely brought his
Rehabilitation Act claim to an EEO counselor’s attention, which is a necessary part of
87
exhausting his administrative remedies. See Lenkiewicz, 146 F. Supp. 3d at 108; Faison v.
Vance-Cooks, 896 F. Supp. 2d 37, 51 (D.D.C. 2012). The evidence on record indicates that
Dr. Coulibaly did not contact an EEO counselor about his disability discrimination claim “until
April 16, 2015, which is three years after the termination of [his] employment with the
Department.” Pl.’s Resp. Ex., at 57, ECF No. 36-2 (reproducing the Department’s dismissal
letter). As the Department’s dismissal letter points out, “this far exceeds the 45-day period for
timely contacting an EEO Counselor.” Id. Because the forty-five-day time limit functions like a
statute of limitations, see Doak v. Johnson, 798 F.3d 1096, 1104 (D.C. Cir. 2015), the Court
must dismiss Dr. Coulibaly’s Rehabilitation Act claim for his lack of timeliness in bringing it to
the Department’s attention. Accord Perry v. U.S. Dep’t of State, 669 F. Supp. 2d 60, 65–67.
To be sure, Dr. Coulibaly could escape the forty-five-day limit if he showed (1) “that
he . . . was not notified of the time limits and was not otherwise aware of them,” (2) that he “did
not know and reasonably should not have . . . known” that the disability discrimination had
occurred, or (3) that “despite due diligence he . . . was prevented by circumstances beyond
his . . . control from contacting the counselor within the time limits.” See 29 C.F.R.
§ 1614.105(a)(2). But, for his disability discrimination claim at least, Dr. Coulibaly cannot
contend that he “was not notified of the time limits and was not otherwise aware of them.” Id.
This is because, previously, in relation to another of his EEO complaints, Dr. Coulibaly received
a letter that informed him of the forty-five-day time limit for contacting an EEO counselor. See
Defs.’ Facts Ex. II, at 6–7, ECF No. 30-35. He received that information in January 2012, far in
advance of when he eventually made contact with an EEO counselor about his disability
discrimination claim in 2015. See id. at 2 (showing that the letter about the forty-five-day time
limit was dated January 17, 2012). And by submitting other claims of discrimination in a timely
88
fashion during this same time period, he cannot persuasively argue ignorance of the time
requirements.
Dr. Coulibaly has not argued either (1) that he “did not know and reasonably should not
have . . . known” that disability discrimination occurred or (2) that “despite due diligence he . . .
was prevented by circumstances beyond his . . . control from contacting the counselor within the
time limits.” 29 C.F.R. § 1614.105(a)(2); see Pl.’s Resp. ¶¶ 495–503, ECF No. 36-1. The Court
therefore has no reason to excuse Dr. Coulibaly’s failure to timely bring his disability
discrimination claim to an EEO counselor’s attention. Accordingly, the Court will dismiss
Dr. Coulibaly’s reasonable accommodation claim, asserted in Count 18 of his complaint, without
reaching its merits.
E. First Amendment
The Court next considers Dr. Coulibaly’s First Amendment claims, which he asserts in
two counts of his complaint:
(1) Count 5, which alleges reprisal and retaliation in “violation of Title VII . . . as
well [as] the First Amendment” based on Dr. Coulibaly’s “political activities
related to his country of origin,” Compl. ¶¶ 104–05; and
(2) The second of the two counts labeled “Count 19” in Dr. Coulibaly’s complaint,
which alleges that Defendants violated Dr. Coulibaly’s First Amendment rights
by preventing him from speaking about systemic discrimination on December 29,
2011, id. ¶¶ 193–96.
The parties cite to evidence outside the complaint when discussing these claims. See Defs.’
Mem. at 41–45; see, e.g., Pl.’s Resp. ¶ 89 (discussing the EEO Report of Investigation in the
context of Dr. Coulibaly’s retaliation claims, as well as his other claims). The Court accordingly
89
applies the legal standard applicable to motions for summary judgment under Rule 56. See supra
Part III.C.1 (describing that legal standard). The Court discusses each First Amendment claim in
turn.
2007 Speech
Given that it appears alongside claims made with respect to FSI’s failure to hire
Dr. Coulibaly in 2007, the Court construes Count 5 of Dr. Coulibaly’s complaint as alleging that
FSI did not hire him in 2007 because of his protected First Amendment speech—namely,
communicating with the media about the Ivorian government. See Compl. ¶¶ 97–105. The
Court analyzes this claim first as asserted against the United States, and then as asserted against
the individual defendants.
a. Claims Against the United States
To the extent that Dr. Coulibaly seeks damages against the federal government for
alleged First Amendment violations, see, e.g., Compl. ¶ 196 (requesting “appropriate damages”),
his First Amendment claims cannot proceed. “Federal constitutional claims for damages are
cognizable only under Bivens [v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971)], which runs against individual government officials personally.” Loumiet v.
United States, 828 F.3d 935, 945 (2016) (citing FDIC v. Meyer, 510 U.S. 471, 482, 485–86
(1994)). For that reason, “the United States is not a proper Bivens defendant,” Stebbins v. United
States, 554 F. App’x 14, 14 (D.C. Cir. 2014) (per curiam), and Dr. Coulibaly cannot pursue a
claim for damages under the First Amendment against the United States. See FDIC v. Meyer,
510 U.S. 471, 477 (1994) (finding no waiver of sovereign immunity for damages claims for
constitutional torts).
90
And, to the extent that Dr. Coulibaly’s First Amendment claim based on 2007 events
seeks equitable or injunctive relief, that claim is moot, given that the Department of State
eventually hired him (notwithstanding his protected First Amendment speech) in 2011. See
Notification of Personnel Action, Defs.’ Facts Ex. C, ECF No. 30-3 (showing that Dr. Coulibaly
began working as a Department of State employee on June 19, 2011). The doctrine of mootness
derives from the principle that “the courts of the United States, pursuant to Article III of the
Constitution, have no jurisdiction to act unless there is ‘a case or controversy.’” True the Vote,
Inc. v. IRS, No. 14-5316, 2016 WL 4151231, at *5 (D.C. Cir. Aug. 5, 2016). See generally U.S.
Const. art. III, § 2 (extending the federal courts’ jurisdiction to specific types of “cases” and
“controversies”). When a plaintiff seeks equitable or injunctive relief but “there remains no
conduct to be enjoined,” then “normally there is no relief that need be granted, the case or
controversy has ceased, and the jurisdiction of the court has expired under Article III.” True the
Vote, 2016 WL 4151231, at *7. Put another way, when “events have so transpired that the
decision will neither presently affect the parties’ rights nor have a more-than-speculative chance
of affecting them in the future,” the federal court must refrain from deciding whether to grant
injunctive relief. Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc) (internal
quotation marks omitted) (quoting Transwestern Pipeline Co. v. FERC, 897 F.2d 570, 575 (D.C.
Cir. 1990)).
That is the case here. Even if the Court were to decide that the federal government
violated Dr. Coulibaly’s First Amendment rights in 2007, that decision would not “presently
affect” Dr. Coulibaly’s rights, for purposes of equitable relief. Clarke, 915 F.2d at 701 (quoting
Transwestern Pipeline Co., 897 F.2d at 575). Dr. Coulibaly alleges that, because of the
Department of State’s First Amendment retaliation, he suffered harm when he was not hired or
91
promoted in 2007. See Compl. ¶¶ 83–105. Assuming that to be true, the corresponding
equitable relief for his alleged First Amendment violation would be an order requiring the
Department of State to hire Dr. Coulibaly. Because the Department of State has already done so,
see Notification of Personnel Action, Defs.’ Facts Ex. C, ECF No. 30-3, there is “no relief that
need be granted” in relation to the First Amendment claim relating to 2007 events, True the Vote,
2016 WL 4151231, at *7. Any action for equitable or injunctive relief based on those events is
therefore moot, and the Court lacks jurisdiction to act on it.48 See id.
Because Dr. Coulibaly cannot press a First Amendment claim, based on 2007 events, for
either damages or injunctive relief against the United States, the Court will dismiss Count 5 of
Dr. Coulibaly’s complaint, as asserted against the United States. The Court now discusses
Count 5, as asserted against the individual defendants.
b. Claims Against Individual Defendants
Even though Dr. Coulibaly may not bring a First Amendment claim for damages against
the United States, he may sue the individual defendants in their personal capacities for damages
under Bivens. See Loumiet, 828 F.3d at 945 (citing Meyer, 510 U.S. at 482, 485–86); see also
Richardson v. Yellen, No. 14-1673, 2016 WL 890570, at *7 n.9 (D.D.C. Mar. 8, 2016) (“Under
Bivens . . . , plaintiffs can allege constitutional torts directly against individual federal
employees.”). But, as discussed earlier in this opinion, proper service has not yet been effected
on the individual defendants in their personal capacities. See supra Part III.B.3.a. Before the
individual defendants are served with process and before they receive an opportunity to respond
to the allegations made against them, the Court need not address the merits of Dr. Coulibaly’s
48
The fact that the State Department later terminated him in 2012 does not change the
fact that the alleged harm suffered in 2007 was remedied when he was hired in 2011. The
propriety of the termination in 2012 is the subject of Plaintiff’s other claims.
92
First Amendment claim based on 2007 events.49 The Court will therefore deny Defendants’
motion with respect to this claim, as asserted against the individual defendants, without
prejudice.
Given that Dr. Coulibaly is in forma pauperis, the Court will order the United States
Marshal to serve the individual defendants so that the Court may eventually address the merits of
this claim. See Fed. R. Civ. P. 4(c)(3) (stating that the court must order “a United States marshal
or deputy marshal or . . . a person specially appointed by the court” to effect service of process
when the plaintiff is authorized to proceed in forma pauperis). Because the defendants are sued
in their personal capacities, the Court will order the United States Marshal to serve the individual
defendants personally. See Fed. R. Civ. P. 4(e)(2)(A). If the United States Marshal is unable to
do so, the Court will order Dr. Coulibaly to provide addresses for the individual defendants’
dwellings, so that the United States Marshal may effect service through another means. See Fed.
R. Civ. P. 4(e)(2)(B) (allowing service at a defendant’s “dwelling or usual place of abode”); see
also Fed. R. Civ. P. 4(e)(1) (allowing service by means allowed under state law “in the state
where the district court is located or where service is made”); D.C. Super. Ct. R. Civ. P. 4(c)(3),
(4) (allowing service by mail to a defendant’s residence).50
2011 Speech
The Court now turns to the second of Dr. Coulibaly’s First Amendment claims. In the
second of the two counts labeled “Count 19” in Dr. Coulibaly’s complaint, Dr. Coulibaly alleges
49
It appears that the statute of limitations may have already run on these claims. See
generally Banks v. Chesapeake & Potomac Tel. Co., 802 F.2d 1416, 1429 (D.C. Cir. 1986)
(“[T]he three-year limitations period in [D.C. Code] § 301(8) applies . . . to most Bivens
actions . . . .”); Richardson, 2016 WL 890570, at *7 (explaining that, in the District of Columbia,
three years is the longest period that could apply to a plaintiff’s Bivens claims).
50
Of course, the individual defendants may choose to waive service or designate their
counsel to accept service on their behalf.
93
that his First Amendment rights were violated when LTS Casteuble issued him a reprimand letter
about his statements at the French language section meeting on December 29, 2011. See Compl.
¶¶ 193−96. See generally supra Part II.A.7 (discussing the meeting). Defendants challenge
Dr. Coulibaly’s claim by asserting that his speech during the meeting was not protected speech
under the First Amendment (1) because it did not address “systematic or global discrimination”
and (2) because Dr. Coulibaly spoke in the context of performing his official employment duties,
and not as a citizen. Defs.’ Mem. at 42–44. The Court agrees with both of these assertions.
Although “public employees do not surrender all their First Amendment rights by reason
of their employment,” Garcetti v. Ceballos, 547 U.S. 410, 417 (2006), a public employee’s
speech receives First Amendment protection only when the employee speaks “as a citizen on a
matter of public concern,” Bowie v. Maddox, 642 F.3d 1122, 1133 (D.C. Cir. 2011) (quoting
Wilburn v. Robinson, 480 F.3d 1140, 1149 (D.C. Cir. 2007). See generally Garcetti, 547 U.S. at
417 (“[T]he First Amendment protects a public employee’s right, in certain circumstances, to
speak as a citizen addressing matters of public concern.”). Logically, to speak “as a citizen on a
matter of public concern,” the public employee must satisfy two prerequisites: he must not only
speak “on a matter of public concern,” but he also speak “as a citizen.” See Bowie, 642 F.3d at
1133–34 (internal quotation marks omitted) (quoting Wilburn, 480 F.3d at 1149).
Speech about personal disputes between employees and supervisors generally does not
address matters of public concern. See Connick v. Myers, 461 U.S. 138, 148 (1983) (holding that
speech about an employee’s displeasure in being transferred does not address a matter of public
concern). To be sure, “morale in the workplace [is] related to an agency’s efficient performance
of its duties” and, in that way, it can address a matter of public concern. Id. Nonetheless, an
employee’s speech about morale in the workplace does not address a matter of public concern
94
when the speech merely seeks “to gather ammunition for another round of controversy with . . .
superiors.” Id. Likewise, speech does not address a matter of public concern when it deals with
“individual personnel disputes and grievances.” Murray v. Gardner, 741 F.2d 434, 438 (D.C.
Cir. 1984) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983)). Speech is
not protected when it is “of pressing import only to other employees in the speaker’s office,
Barnes v. Small, 840 F.2d 972, 982 (D.C. Cir. 1988), and “would be of no relevance to the
public’s evaluation of the performance of government agencies,” Murray, 741 F.2d at 438
(quoting McKinley, 705 F.2d at 1114).
Here, individuals who were present at the meeting—including a colleague sympathetic to
Dr. Coulibaly, in addition to a member of FSI’s management—attest that Dr. Coulibaly’s speech
focused on personal experiences of discrimination. See Casteuble Mem. (Jan. 24, 2012), EEO
Investigation Report at 815, ECF No. 36-4 (stating that Dr. Coulibaly spoke about
“discrimination and retaliation against [him] on the part of the French [s]upervisors”); Cazeau
Aff., EEO Investigation Report at 1340, Coulibaly v. Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016),
ECF No. 26-12 (stating that, at the meeting, “Dr. Coulibaly started saying that he felt
discriminated against because of his lesson plan”). And though Dr. Coulibaly asserts that his
speech opposed “systemic and global discrimination,” Compl. ¶¶ 194–95, he provides no facts or
argument to support the idea that his speech dealt with matters of public concern. See Pl.’s Resp.
¶¶ 515–17. Thus, no evidence shows that his speech extended beyond an individual personnel
dispute. At most, the evidence reflects Dr. Coulibaly’s attempt to turn his own dispute with FSI
management “into a cause celèbre.” Connick, 461 U.S. at 148; cf. Tao v. Freeh, 27 F.3d 635,
640 (D.C. Cir. 1994) (holding that a claim implicated matters of public concern and was
95
“broader than an individual employee personnel grievance” when it involved a “protest” against
discrimination allegedly occurring against all Chinese-Americans in the employee’s unit).
Dr. Coulibaly’s speech does not merit First Amendment protection for another reason: he
was not speaking as a citizen during the December 29, 2011 meeting; his speech instead “owe[d]
its existence to . . . his professional responsibilities” as a public employee. Garcetti, 547 U.S. at
421–22. The D.C. Circuit has “consistently held that a public employee speaks without First
Amendment protection when he reports conduct that interferes with his job responsibilities, even
if the report is made outside his chain of command.” Mpoy v. Rhee, 748 F.3d 285, 290–91 (D.C.
Cir. 2014) (internal quotation mark omitted) (quoting Winder v. Erste, 566 F.3d 209, 215 (D.C.
Cir. 2009). And, even more relevantly, the D.C. Circuit has held that speech alleging
discrimination with respect to certain employees’ salaries was not protected speech, because that
speech fell within the speaking employee’s job responsibilities. See Wilburn, 480 F.3d at
1150–51.
Dr. Coulibaly’s speech about FSI discrimination and retaliation, Compl. ¶ 194, falls
squarely in the category of speech that, under these precedents, is not protected. Dr. Coulibaly
spoke about how FSI’s discrimination manifested through the lesson plan requirement that FSI
imposed on him. See Cazeau Aff., EEO Investigation Report at 1339–40, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12. That speech “reports conduct that
interferes with his job responsibilities,” Mpoy, 758 F.3d at 291, “owes its existence” to his
professional responsibilities as a public employee, Garcetti, 547 U.S. at 421–22, and accordingly
lacks First Amendment protection, see Mpoy, 758 F.2d at 290–91.
Thus, because Dr. Coulibaly can show neither that he spoke “on a matter of public
concern” nor that he spoke “as a citizen,” he does not meet a threshold requirement for a First
96
Amendment retaliation claim based on his December 29, 2011 speech. See Bowie, 642 F.3d at
1133 (explaining that, to establish the first element of a First Amendment retaliation claim, the
public employee must establish that he “spoke[] as a citizen on a matter of public concern”
(quoting Wilburn, 480 F.3d at 1149)). The Court therefore grants Defendants’ motion for
summary judgment on the second of the two counts labeled “Count 19” in the complaint.
F. Claims Under District of Columbia Law
Having determined that Dr. Coulibaly’s First Amendment claims cannot proceed, the
Court turns to Counts 12 and 17 of Dr. Coulibaly’s complaint, in which he brings claims under
two District of Columbia statutes: the District of Columbia Workplace Fraud Act, and the
District of Columbia Whistleblower Protection Act.51 See Compl. ¶¶ 118–26, 165–76. Because
the parties cite to evidence beyond the complaint when addressing these claims, see Defs.’ Mem.
29–32; see, e.g., Pl.’s Resp. ¶ 485, the Court applies the legal standard for motions for summary
judgment under Rule 56. See supra Part III.C.1 (describing that legal standard). The Court
addresses each count in turn.
51
Although the issue need not be resolved here, the Court is skeptical to the idea that the
United States has waived sovereign immunity for District of Columbia local workplace laws.
Courts have found sovereign immunity for claims against federal agencies arising under the
District of Columbia Human Rights Act, because there is “no evidence in any federal statute that
Congress intended to allow the federal government to be sued for discrimination” under the Act.
See Jordan v. Evans, 404 F. Supp. 2d 28, 31 (D.D.C. 2005); see also Marcus v. Geithner, 813 F.
Supp. 2d 11, 17 (D.D.C. 2011). Here, Plaintiffs’ claims arise under laws enacted by the District
of Columbia Council, not federal statutes. See Workplace Fraud Amendment Act of 2012, B19-
0169, 2013 Council, 20th Period (D.C. 2013) (codified at D.C. Code §§ 32-1331.01–1331.15);
Whistleblower Reinforcement Act of 1998, B12-0191, 1997 Council, 12th Period (D.C. 1997)
(codified at D.C. Code §§ 1-615.51–615.59). Accordingly, there is no evidence in a federal
statute that Congress intended to waive sovereign immunity.
97
Workplace Fraud Act
In Count 12 of his complaint, Dr. Coulibaly argues that the Department of State
misclassified him as a contractor instead of as an employee on his position description, thereby
violating the District of Columbia Workplace Fraud Act (“WFA”). Compl. ¶¶ 118–26.
Defendants argue, among other things, that the WFA applies only to employees in the
construction industry. See Defs.’ Mem. at 30. And, indeed, the statute clearly states that, under
the WFA, “‘[e]mployee’ means every person . . . providing construction services to another
person.” D.C. Code § 32-1331.01(2) (emphasis added). The WFA also states that it “shall apply
only to the construction services industry.” Id. § 32-1331.02.
Dr. Coulibaly makes no assertions in his complaint about having ever served as an
employee in the construction industry. See Compl. ¶¶ 118–26. Nor is there any evidence in the
record to suggest that he ever did. Cf. Position Description, Defs.’ Facts Ex. F, at 3–4, ECF No.
30-6 (stating that Dr. Coulibaly’s major duties while working for the Department of State
included “teaching speaking, reading, listening comprehension and writing . . . skills to a full
range of students” and “provid[ing] major substantive input for the planning, design,
development and evaluation of the course content”). Because the record in this case shows no
dispute about the fact that Dr. Coulibaly never provided construction services while working for
the Department of State, the Court must find, as a matter of law, that the WFA does not apply to
Dr. Coulibaly. The Court accordingly cannot hear his claim and will therefore enter judgment
for Defendants on Count 12 of his complaint.
Whistleblower Protection Act
Count 17 of Dr. Coulibaly’s complaint alleges that, because he was terminated for
attempting to expose an inappropriate relationship between Director Blake and a colleague, his
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termination violated the District of Columbia Whistleblower Protection Act. Compl. ¶¶ 165–176.
Defendants correctly argue that the Act applies to only current and former District of Columbia
government employees. See Defs.’ Mem. 31–32. The Act defines “employee” to include only
(1) former or current District of Columbia government employees and (2) applicants for
employment by the District of Columbia government. See D.C. Code § 1-615.52(a)(3).
Moreover, the Act prohibits only “supervisors” from taking prohibited personnel actions because
of an employee’s whistleblowing activities—and it defines “supervisors” to include only
individuals “employed by the District [of Columbia] government.” Id. §§ 1-615.52(a)(8),
1-615.53(a). And though Dr. Coulibaly asserts that the Act covers federal agencies because it
defines “public body” to include federal agencies, see Compl. ¶ 171 (quoting D.C. Code
§ 1-615.52(a)(7)(C)), the Act merely includes federal agencies within the set of bodies to which
District of Columbia government employees may make protected whistleblowing disclosure.
See D.C. Code § 1-615.52(a)(6) (defining protected whistleblowing disclosures as including
disclosures of information “made by a supervisor or a public body”); cf. id. § 1-615.53 (imposing
prohibitions on “supervisors,” but not on “public bodies”). The District of Columbia
Whistleblower Protection Act thus applies only to District of Columbia government employees
and to District of Columbia government employers. Contra Pl.’s Resp. ¶ 442.
In this case, no evidence in the record suggests that Dr. Coulibaly is or ever was a District
of Columbia government employee. Cf., e.g., Position Description, Defs.’ Facts Ex. F, ECF
No. 30-6 (showing that the United States Department of State, not the District of Columbia
government, employed Dr. Coulibaly). Nor does Dr. Coulibaly assert that his supervisors were
District of Columbia government employees. See Compl. ¶¶ 165–76; cf., e.g., Fyfe Aff. ¶ Q1,
Defs.’ Facts Ex. H, ECF No. 30-8 (stating that LTS Fyfe was an FSI employee within the
99
Department of State, not a District of Columbia government employee). Thus, because the Act’s
statutory language offers a right of action to only current or former District of Columbia
government employees asserting claims against District of Columbia government employee-
supervisors, Dr. Coulibaly cannot file suit under the District of Columbia Whistleblower
Protection Act.52 The Court will therefore grant Defendants’ motion for summary judgment with
respect to Count 17 of Dr. Coulibaly’s complaint.
G. Motion for Leave to File a Fourth Amended Complaint
Having addressed the merits of the parties’ arguments with respect to Defendants’
motion, the Court now turns to the remaining motions pending in this case. With respect to
Dr. Coulibaly’s motion for leave to file a fourth amended complaint, see Pl.’s Resp., the Court
observes that many counts of Dr. Coulibaly’s proposed amended complaint duplicate counts in
the current complaint that the Court deems cannot proceed. See, e.g., Pl.’s Resp. ¶¶ 287–368,
371–74, 425–37, 440–42, 449–74, 482–512, 515–33. Given this fact, the Court takes note of the
principle that “[a]n amendment would be futile if it merely restates the same facts as the original
complaint in different terms, reasserts a claim on which the court previously ruled, fails to state a
legal theory, or could not withstand a motion to dismiss.” Robinson v. Detroit News, Inc., 211 F.
Supp. 2d 101, 114 (D.D.C. 2002). In light of the Court’s rulings today, much of Dr. Coulibaly’s
proposed amended complaint is futile, and it would accordingly be inappropriate for the Court to
grant his motion to amend the existing complaint. Furthermore, the Court observes that some of
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The Court notes that Dr. Coulibaly has pursued similar claims under the federal
Whistleblower Protection Act. See Pet. for Review at 1–2, Coulibaly v. Dep’t of State, No. 16-
1156 (D.C. Cir. May 24, 2016) (seeking review of the Office of Special Counsel’s closure of his
whistleblower retaliation allegations).
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Dr. Coulibaly’s claims are based on entirely unrelated facts and on distinct legal theories. See,
e.g., Pl.’s Resp. ¶¶ 534–40 (asserting Freedom of Information Act claims).
Because of these characteristics of Dr. Coulibaly’s proposed amended complaint, the fact
that this litigation has been pending for two years now, and the fact that the complaint currently
governing this litigation already contains hundreds of paragraphs, granting Dr. Coulibaly’s
motion to amend his complaint would unnecessarily delay proceedings in this action. The Court
will accordingly deny Dr. Coulibaly’s motion for leave to file a fourth amended complaint. See
Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339, 344 (D.C. Cir. 1997) (explaining
that, in deciding whether to allow a party to amend a complaint, courts may consider “undue
delay . . . , undue prejudice to the opposing party . . . , [and] futility of amendment” (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962))).
H. Motion to Add Newly Acquired Evidence
Lastly, Dr. Coulibaly requests that the Court admit newly acquired evidence in the form
of a letter from Dr. Coulibaly’s attending psychiatrist, Dr. Rajendra Lowtan. See Pl.’s Mot. Add
Newly Acquired Evidence, ECF No. 39. Because Defendants consent to this submission, the
Court will grant Dr. Coulibaly’s motion and admit the document into the record. See Defs.’
Resp. Pl.’s Mot. Add Newly Acquired Evidence, ECF No. 44.
Dr. Coulibaly has also requested that the Court seal this document. See Pl.’s Resp. ¶ 40.
Because Defendants have not opposed this request, see Defs.’ Reply, and because individuals
have a privacy interest in “the intimate details” of their lives, see United States v. Hubbard, 650
F.2d 293, 324 (D.C. Cir. 1980), the Court will grant Dr. Coulibaly’s request.
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IV. CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss or in the alternative for
summary judgment (ECF No. 30) is GRANTED IN PART and DENIED IN PART,
Dr. Coulibaly’s motion for leave to file a fourth amended complaint (ECF No. 36) is DENIED,
and Dr. Coulibaly’s motion to include newly acquired evidence (ECF No. 39) is GRANTED.
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: September 30, 2016 RUDOLPH CONTRERAS
United States District Judge
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