RUDOLPH CONTRERAS, United States District Judge.
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
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.
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 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
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" 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 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.
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
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 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.
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
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.
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 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").
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).
On June 19, 2011, FSI at last hired Dr. Coulibaly as an employee. See Compl.
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.
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.
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);
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 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.
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
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 (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.
Five days later, on August 24, 2011, Dr. Coulibaly submitted his reading lesson plan to LTS Fyfe.
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),
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 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.
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, 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
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 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 Investigation Report
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.
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.
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.
Later in December 2011, Dr. Coulibaly received a Performance Appraisal Report ("PAR") from LTS Fyfe that noted "several issues" with Dr. Coulibaly's performance.
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
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, 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).
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 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.
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.
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 (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
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 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.
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 Catherine Russell at 2, Pl.'s Resp. Ex., at 146, ECF No. 36-2 ("It is recommended that [Dr.] Coulibaly
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.
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, 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
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 Resp. Ex., at 56-60, ECF No. 36-2 (reproducing the dismissal letter).
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;
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 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).
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
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.
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.
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.
The following counts of the complaint appear to allege tort or contract claims:
Before turning to the merits of these claims, however, the Court reviews the legal standard for Defendants' motion to dismiss them.
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 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).
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, 124 S.Ct. 2686, 159 L.Ed.2d 548 (2004) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (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, 112 S.Ct. 2130, 119 L.Ed.2d 351 (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, 61 S.Ct. 767, 85 S.Ct. 1058 (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, 114 S.Ct. 996, 127 L.Ed.2d 308 (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. Adm'r, EPA, 982 F.2d 531, 532 (D.C. Cir. 1992) (quoting United States v.
Because sovereign immunity is a jurisdictional issue, FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (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).
"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, 108 S.Ct. 404, 98 L.Ed.2d 415 (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, 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)).
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, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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, 127 S.Ct. 1955 (citations and footnote omitted). "Threadbare recitals of the elements of a cause of action,
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, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Kentucky v. Graham, 473 U.S. 159, 166-67, 105 S.Ct. 3099, 87 L.Ed.2d 114 (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 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.
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, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). Because governing
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.Supp.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, 96 S.Ct. 1961, 48 L.Ed.2d 402 (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, 96 S.Ct. 1961; 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 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).
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.
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 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
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.
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.
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
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." 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:
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
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").
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 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
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.
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, 96 S.Ct. 1961, 48 L.Ed.2d 402 (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.
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.
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:
The Court reviews the applicable legal standard before turning to the merits of these claims.
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 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
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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 127 S.Ct. 1769, 167 L.Ed.2d 686 (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, 106 S.Ct. 2505.
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, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2548. 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, 106 S.Ct. 2548. 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, 106 S.Ct. 2505).
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, 106 S.Ct. 2505. Nevertheless, conclusory assertions offered 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).
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,
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.
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)).
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
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.
Dr. Coulibaly's claims in Counts 1-5 of his complaint allege that he was subjected to discrimination on the basis of
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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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
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.
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.
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
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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 93 S.Ct. 1817. 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, 113 S.Ct. 2742, 125 L.Ed.2d 407 (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 "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
The Court now analyzes the merits of Dr. Coulibaly's discrimination claims, as alleged in Counts 13, 14, 15, and 20 of his complaint.
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 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
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").
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 "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
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.
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.
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.
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, 99 S.Ct. 2345 (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, 168 F.Supp.3d at 35-36 (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 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).
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 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. 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.
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.
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 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,
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. 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, ___ U.S. ___, 133 S.Ct. 2517, 2528, 186 L.Ed.2d 503 (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 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,"
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 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.
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, 118 S.Ct. 2275, 141 L.Ed.2d 662 (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, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)); accord Baloch v. Kempthorne, 550 F.3d 1191, 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, 118 S.Ct. 998).
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").
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, 114 S.Ct. 367.
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.
Dr. Coulibaly's former colleagues corroborate the idea that Dr. Coulibaly's supervisors imposed exceptional scrutiny on his performance.
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
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.
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 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.
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).
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 (D.D.C. 2011) ("[T]he [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
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 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 (D.D.C. 2009).
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 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
The Court next considers Dr. Coulibaly's First Amendment claims, which he asserts in two counts of his complaint:
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 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.
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.
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, 91 S.Ct. 1999, 29 L.Ed.2d 619 (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, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994)). For that reason, "the United States is not a proper Bivens defendant," Stebbins v. United States, 554 Fed.Appx. 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, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (finding no waiver of sovereign immunity for damages claims for constitutional torts).
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
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 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, 831 F.3d at 561, 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.
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.
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, 114 S.Ct. 996); see also Richardson v. Yellen, 167 F.Supp.3d 105, 115 n.9 (D.D.C. 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
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).
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 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, 126 S.Ct. 1951, 164 L.Ed.2d 689 (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, 126 S.Ct. 1951 ("[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
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, 103 S.Ct. 1684, 75 L.Ed.2d 708 (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 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, 103 S.Ct. 1684; cf. Tao v. Freeh, 27 F.3d 635, 640 (D.C. Cir. 1994) (holding that a claim implicated matters of public concern and was "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, 126 S.Ct. 1951. 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, 758 F.3d 285, 290-91 (D.C. Cir. 2014) (internal quotation mark omitted) (quoting Winder v. Erste,
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, 126 S.Ct. 1951, 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 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.
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.
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
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.
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 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
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 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, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962))).
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.
For the foregoing reasons, Defendants' motion to dismiss or in the alternative for summary judgment (ECF No. 30) is
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").
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, 174 F.Supp.3d 58, 65, 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, 167 F.Supp.3d 105, 117-18 (D.D.C.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).
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.
