United States District Court, D. Columbia.
[Copyrighted Material Omitted]
TIEMOKO COULIBALY, PhD, Sorbonne, Plaintiff, Pro se, Silver
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.
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
CONTRERAS, United States District Judge.
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.
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
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.
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.
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.
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.
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.
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
claims before the Merit Systems Protection Board ("
MSPB" ). See Compl. ¶ 73.
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. 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. By way of
relief, Dr. Coulibaly seeks compensatory damages for lost
wages and benefits along with equitable relief. See
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.
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
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
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
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
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.
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.