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Coulibaly v. Kerry

United States District Court, D. Columbia.

September 11, 2015

TIEMOKO COULIBALY, Plaintiff,
v.
JOHN KERRY, U.S. Secretary of State, et al., Defendants

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[Copyrighted Material Omitted]

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          TIEMOKO COULIBALY, PhD, Sorbonne, Plaintiff, Pro se, Silver Spring, MD.

         For JOHN F. KERRY, Secretary, U.S. Department of State, RUTH WHITESIDE, Director, Foreign Service Institute (FSI), U.S. Department of State, CATHY RUSSELL, Executive Director, Foreign Service Institute (FSI), U.S. Department of State, MARIANNE MYLES, Dean, Foreign Service Institute (FSI), U.S. Department of State, JAMES NORTH, Associate Dean, Foreign Service Institute (FSI), U.S. Department of State, DEBRA BLAKE, Division Director, FSI, U.S. Department of State, DEBORAH DUCKETT, Head of HR, FSI, U.S. Department of State, PHUONG NGUYEN, HR Officer, FSI, U.S. Department of State, BRIAN SPRINGER, HR Officer, FSI, U.S. Department of State, MICHELLE D. BRYANT, HR Officer, FSI, U.S. Department of State, PHILIPPE CASTEUBLE, French Supervisor, FSI, U.S. Department of State, LAURA FYFE, French Supervisor, FSI, U.S. Department of State, HILARY SACHS, French Supervisor, FSI, U.S. Department of State, DORA CHANESMAN, Training Specialist, French Section, FSI, U.S. Department of State, KRISTINA MEDICK, Lawyer, U.S. Department of State, JENNIFER TOOLE, Lawyer, U.S. Department of State, Defendants: Wynne Patrick Kelly, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA, Washington, DC.

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         MEMORANDUM OPINION

         Granting in Part and Denying in Part Defendants' Motion to Dismiss; Denying Plaintiff'S Motion for Summary Judgment; Denying as Moot Plaintiff'S Motion to Expedite

         RUDOLPH CONTRERAS, United States District Judge.

         I. INTRODUCTION

         Dr. Tiemoko Coulibaly, proceeding pro se and in forma pauperis, brings this action against the Secretary of State and fifteen other individuals who are current or former employees of the U.S. Department of State. Dr. Coulibaly alleges that, by terminating his employment, Defendants violated the District of Columbia Accrued Sick and Safe Leave Act, as amended, and Title I of the federal Family and Medical Leave Act. Currently pending before the Court are the defendants' motion to dismiss, Dr. Coulibaly's motion for summary judgment, and his motion to expedite. Because the Court's jurisdiction over the D.C. law claim is precluded by the Civil Service Reform Act, the Court dismisses that claim. Because, however, the Court has jurisdiction over Dr. Coulibaly's claim under Title I of the Family and Medical Leave Act, and because the defendants have not shown that the complaint fails to state a claim, the Court denies the motion to dismiss as to that claim. Because there remain genuine issues of material fact as to the defendants' liability under the Family and Medical Leave Act, the Court denies Dr. Coulibaly's motion for summary judgment. Because the court resolves the pending dispositive motions, the Court denies as moot the motion to expedite.

         II. FACTUAL BACKGROUND[1]

         Dr. Coulibaly joined the Department of State's Foreign Service Institute (" FSI" ) as a French instructor in 1999. Compl. ¶ 4, ECF No. 1. He was hired originally as a contractor under a Blanket Purchase Agreement. See id. ¶ ¶ 75, 83. On June

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19, 2011, Dr. Coulibaly commenced a two-year Excepted Service appointment within the Department of State as a French instructor, performing substantially the same duties as he had while a contractor. Limaye letter of May 27, 2011, Compl. Ex. at 113, ECF No. 1-1; Compl. ¶ ¶ 75, 83. His appointment was subject to an initial one-year trial or probationary period. See id.

         In November 2011, Dr. Coulibaly met with an Equal Employment Opportunity (" EEO" ) counselor to discuss alleged discrimination, and on December 20, 2011, he filed a formal EEO complaint alleging that FSI management had discriminated against him on the basis of race, color, and national origin. See Compl. ¶ ¶ 2, 8-9; EEO Counselor's Report, Compl. Ex. at 102-06, ECF No. 1-1. As a result of that EEO complaint, FSI management subjected Dr. Coulibaly to extensive harassment, causing his physical and mental health to deteriorate. See Compl. ¶ ¶ 11, 14.

         In February 2012, Dr. Coulibaly's primary care physician instructed him not to return to work and referred him to a psychiatrist. Id. ¶ ¶ 12, 13. Dr. Coulibaly was absent from work for approximately six weeks, from February 15, 2012, until March 26, 2012. Id. ¶ 12. During this absence, Dr. Coulibaly submitted to FSI a letter from the psychiatrist explaining his diagnosis of depression, anxiety, and post-traumatic stress disorder, which conditions the psychiatrist attributed to Dr. Coulibaly's " hostile work environment." See id. ¶ 14; see also Hamlin report of Mar. 10, 2012, Compl. Ex. at 1-2, ECF No. 1-1. Despite Dr. Coulibaly's multiple submissions of his leave request, FSI management refused to process the request on the basis that his psychiatrist had " provided too much information" and that approval of the request would jeopardize Dr. Coulibaly's privacy. Compl. ¶ 15.

         On March 26, 2012, per his psychiatrist's instructions, Dr. Coulibaly returned to work and requested a change in supervisor. See id. ¶ 14. Upon his return, he again submitted his leave request and medical records, which FSI policies required that he submit within fifteen days after his return. See id. ¶ 17. On March 28, 2012, FSI management approved his leave request by email. Id. ¶ 18; see also Leave approval email of Mar. 28, 2012, Compl. Ex. at 18, ECF No. 1-1. Later that day, Dr. Coulibaly requested approval of eight hours of advance sick leave based on his health issues; his supervisor Philippe Casteuble explained that he had no authority to approve such a request and instead entered the eight hours as leave without pay pending further management approval. See Coulibaly-Casteuble emails of Mar. 28, 2012, Compl. Ex. at 27, ECF No. 1-1.

         On April 2, 2012, FSI terminated Dr. Coulibaly's employment prior to the completion of his one-year trial period. See Compl. ¶ 19; Termination letter of Apr. 2, 2012, Compl. Ex. at 3, ECF No. 1-1. The termination letter explained that Dr. Coulibaly was discharged for " unacceptable conduct," including " inappropriate interactions with supervisors, and . . . failure to follow established procedures for requesting leave." Termination letter of Apr. 2, 2012, Compl. Ex. at 3. His termination became effective on April 6, 2012. See id. FSI declined to pay Dr. Coulibaly for the time he was on sick leave, claiming that because he failed to follow proper procedure for requesting leave, his leave was never in fact approved. See Compl. ¶ ¶ 23, 32.

         Thereafter, Dr. Coulibaly continued to pursue his EEO complaint. Id. ¶ 27; see also EEO filings and investigative documents, Compl. Ex. at 28-101, ECF No. 1-1. He also asserted certain whistleblower

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claims before the Merit Systems Protection Board (" MSPB" ). See Compl. ¶ 73.

         In April 2014, Dr. Coulibaly filed the instant action against the Secretary of State and fifteen other individuals who are current or former employees of the U.S. Department of State (collectively " Defendants" ). See generally Compl.[2] The complaint alleges that his termination violated the federal Family and Medical Leave Act of 1993 (" FMLA" ), Pub. L. No. 103-3, 107 Stat. 6 (1993), as codified at 29 U.S.C. § § 2601 et seq., and the District of Columbia Accrued Sick and Safe Leave Act of 2008, 2008 D.C. Laws 17-152, as codified at D.C. Code § § 32-131.01 et seq., as amended by the Earned Sick and Safe Leave Amendment Act of 2013, 2014 D.C. Laws 20-89.[3] By way of relief, Dr. Coulibaly seeks compensatory damages for lost wages and benefits along with equitable relief. See Compl. 46-47.

         Defendants have filed a motion to dismiss. See ECF No. 9. Dr. Coulibaly has filed a motion for summary judgment, see ECF No. 11, and has submitted a letter that the Court construed as a motion to expedite, see ECF No. 16. All motions are ripe for adjudication.

         III. LEGAL STANDARDS

         A. Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction, and the law presumes that " a cause lies outside this limited jurisdiction[.]" Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Thus, to survive a Rule 12(b)(1) motion to dismiss, a plaintiff bears the burden of establishing that a court has jurisdiction over his claim. See Moms Against Mercury v. FDA, 483 F.3d 824, 828, 376 U.S. App.D.C. 18 (D.C. Cir. 2007) (subject-matter jurisdiction). In determining 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, 357 U.S. App.D.C. 72 (D.C. Cir. 2003) (citations omitted).

         " 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. District of Columbia, 931 F.Supp.2d 192, 200 (D.D.C. 2013) (citing Fed. Deposit Ins. Corp. 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, E.P.A., 982 F.2d 531, 532, 299 U.S. App.D.C. 143 (D.C. Cir. 1992) (citation and internal quotation marks omitted).

         B. Rule 12(b)(6)

         To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, a complaint must contain sufficient factual allegations, accepted as true, to " state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows

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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

         C. Rule 56

         A court may grant summary judgment when " 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 party moving for summary judgment bears the " initial responsibility" of demonstrating " the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also id. at 330-31 (Brennan, J., dissenting on other grounds) (explaining that " ultimate burden of persuasion" to establish the lack of a genuine dispute of material fact " always remains on the moving party" ).

         IV. ANALYSIS

         Dr. Coulibaly alleges that his termination violated both the FMLA and the D.C. Accrued Sick and Safe Leave Act, as amended. See generally Compl. In their motion to dismiss, Defendants contend that the Court lacks jurisdiction over Dr. Coulibaly's claims, that he has failed to state plausible claims, and that he failed to perfect service on those defendants sued in their individual capacities. See Mem. Supp. Defs.' Mot. Dismiss 5-12. In his motion for summary judgment, Dr. Coulibaly contends that because his evidence demonstrates the absence of any issue for trial, he is entitled to summary judgment. See generally Mem. Supp. Pl.'s Mot. Summ. J.

         Because the Court's jurisdiction over Dr. Coulibaly's D.C. law claim is precluded by the Civil Service Reform Act, the Court dismisses that claim. See infra Part IV.A.1. Because, however, the Court has jurisdiction over Dr. Coulibaly's claim under Title I of the FMLA, see infra Part IV.A, and because Defendants have not shown that the complaint fails to state a claim, see infra Part IV.B, the Court denies the motion to dismiss as to that claim. Because there remain genuine issues of material fact as to Defendants' liability under the FMLA, the Court denies Dr. Coulibaly's motion for summary judgment. See infra Part IV.C.

         A. ...


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