United States District Court, D. Columbia.
[Copyrighted Material Omitted]
For SAIMA ASHRAF-HASSAN, Plaintiff: Ari Micha Wilkenfeld, LEAD ATTORNEY, Zachary L. Wright, PRO HAC VICE, Gary M. Gilbert, LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, MD; Rosalind H. Herendeen, LEAD ATTORNEY, PRO HAC VICE, THE LAW OFFICES OF GARY M. GILBERT & ASSOCIATES, P.C., Silver Spring, MD.
For EMBASSY OF FRANCE, IN THE UNITED STATES, Defendant: Pierre Marie-Paul Chone, LEAD ATTORNEY, LAW OFFICE OF PIERRE CHONE PLLC, Washington, DC.
JAMES E. BOASBERG, United States District Judge.
In May of 2011, Plaintiff Saima Ashraf-Hassan brought this suit, alleging that her employer, the Embassy of France in the United States, had violated Title VII by discriminating against her on account of her national origin, race, religion, and pregnancy. In the intervening years, the parties have conducted discovery, attempted to solve their dispute through mediation, and filed assorted motions and other pleadings. Indeed, Defendant has previously moved to dismiss and has also sought summary judgment, but it has repeatedly failed to convince the Court to deny Plaintiff a trial on her discrimination claims.
Now, three years into this litigation and on the eve of trial, Defendant seeks to secure dismissal by claiming for the first time that the Court no longer has subject-matter jurisdiction. Despite its early concessions to the contrary, the Embassy now suggests that it never fully ceded its sovereign immunity when it hired Ashraf-Hassan or when it willingly entered into this litigation. The Embassy contends that it reserved the right to assert immunity at any time of its choosing and that it has the unfettered ability to walk away whenever it deems the claims to be meritless or the proceedings unfair. It protests, moreover, that this suit is now an affront to its dignity, yet Defendant offers no colorable basis to justify dismissal on sovereign-immunity grounds. This case falls squarely within multiple exceptions to the Foreign Sovereign Immunities Act, a reality that no amount of invective and indignation can change. Defendant may delay these proceedings, but it may not evade trial by means of this transparent ploy.
Plaintiff Saima Ashraf-Hassan, a former employee of the French Embassy in Washington, D.C., is a French citizen who was born in Pakistan. See Ashraf-Hassan v. Embassy of France in United States (Ashraf-Hassan II), No. 11-805, 999 F.Supp.2d 106, 2013 WL 6068861, at *1 (D.D.C. Nov. 19, 2013). She originally came to the United States to complete research for her Ph.D. in law. See id. After arriving in Washington, Ashraf-Hassan obtained an internship with the French Embassy, which later led to an offer of full-time employment. See id. On March 7, 2002, in New York, the parties signed an employment contract, which stipulated that it was to be governed by local law. See Pl. Resp. (ECF No. 53) at 7 & Att. 1 (Contract) at 1. From February 2002 to January 2007, Plaintiff
worked for the Embassy.
See Ashraf-Hassan II, 2013 WL 6068861, at *1. Her duties included supervising the Embassy's internship-placement program and coordinating the Embassy's partnership with the French-American Cultural Exchange in New York. See id.
During her five years of employment, Ashraf-Hassan alleges that she suffered discrimination on the basis of national origin, race, religion, and pregnancy, all in violation of Title VII. See Id. at *2. In addition to claims of unlawful termination, Plaintiff alleges that she was subjected to a hostile work environment that was permeated by harassment so severe and pervasive that it altered the conditions of her employment. See Id. at *4. The Court will not recount the details of these allegations here, as they have been set out at length in prior opinions.
See Ashraf-Hassan v. Embassy of France in United States (Ashraf-Hassan I), 878 F.Supp.2d 164 (D.D.C. 2012);
Ashraf-Hassan II, 2013 WL 6068861.
Early in this case, the Embassy moved to dismiss all causes of action, and in July 2012, the Court ruled that Ashraf-Hassan's wrongful-termination claims were barred for her failure to timely file with the Equal Employment Opportunity Commission.
See Ashraf-Hassan I, 878 F.Supp.2d at 172. The Court, however, decided that Plaintiff could proceed with her harassment claims (Counts I-III and VIII). See id. at 174-75. After several rounds of discovery on the remaining Title VII claims and an unsuccessful attempt at mediation, Defendant moved for summary judgment, principally arguing that no reasonable jury could find favorably for Plaintiff because of alleged inconsistencies in her story.
See Ashraf-Hassan II, 2013 WL 6068861, at *5. The Court disagreed, observing that Defendant's objections to Plaintiff's credibility were an impermissible attempt to have the Court weigh evidence and testimony, thereby usurping the role of the finder of fact. See Id. at *6-7. The Court, consequently, denied Defendant's Motion for Summary Judgment, see Order of Nov. 19, 2013 (ECF No. 36), and further denied its Motion for Reconsideration. See Order of Jan. 16, 2014 (ECF No. 45).
Evidently dissatisfied with this result and with trial looming a few weeks away, the Embassy now invokes the doctrine of sovereign immunity, claiming that after nearly three years of proceedings before this Court, it retains the power to divest itself of the suit at any time it pleases. See ECF No. 51 (Mot. to Dismiss). While at the outset of this litigation, the Embassy acknowledged that it was not entitled to assert immunity, it also stated -- somewhat opaquely -- that it " reserve[d] the right to raise its immunity should it be necessary to protect the confidential character of  [its governmental] activities." See ECF No. 11 (prior Mot. to Dismiss) at 1. This time has now come, according to Defendant.
The Embassy argues that it is able to " withdraw its waiver of immunity since this action is no longer based on the commercial exception or any other exceptions codified by Congress." See Mot. at 3. It further claims -- regardless of the terms of the Foreign Sovereign Immunities Act -- that the Embassy can raise " implied immunity against frivolous litigations and unfair trials." Id. Defendant has already communicated that denial of this present Motion will lead it to seek appellate review for alleged violations of its " right of due process" and " interfer[ence] with its implied immunities." Reply at 5. The Court, accordingly, vacated the trial date and permitted full briefing of this question.
II. Legal Standard
In evaluating a Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(1), the Court must " treat the complaint's factual allegations as true . . . and must grant plaintiff 'the benefit of all inferences that can be derived from the facts alleged.'" Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113, 342 U.S.App.D.C. 268 (D.C. Cir. 2000) (quoting Schuler v. United States, 617 F.2d 605, 608, 199 U.S.App.D.C. 23 (D.C. Cir. 1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253, 365 U.S.App.D.C. 270 (D.C. Cir. 2005). The Court need not accept as true, however, " a legal conclusion couched as a factual allegation," or an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, ...