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Ashraf-Hassan v. Embassy of France

United States District Court, District of Columbia

May 6, 2016




Blaise Pascal, the seventeenth-century mathematician and philosopher, once opined, “Contradiction is not a sign of falsity, nor the lack of contradiction a sign of truth.” The Embassy of France in the United States, the Defendant in this long-running employment-discrimination case, begs to differ with its citizen’s observation. It is instead convinced that a particular contradiction in Plaintiff Saima Ashraf-Hassan’s testimony renders her an entirely incredible and possibly deceitful witness in the just-completed bench trial. In Defendant’s view, that contradiction, which is now highlighted by what it characterizes as newly discovered evidence, casts such a pall over the plausibility of her account as to render suspect the Court’s verdict, which credited much of her testimony in finding Defendant liable for creating a hostile work environment.

The Embassy now moves to supplement or reopen the record, or, alternatively, for a new trial. In so doing, it largely proffers myriad factual and legal arguments that it previously raised – and the Court rejected – at or before trial. Because Defendant has failed to identify any clear errors in the Court’s factual findings, and because no “manifest injustice” or prejudice was worked on the Embassy as a result of Plaintiff’s testimonial inconsistency, the Court will deny the two post-trial Motions currently before it.

I. Background

This five-year-old lawsuit has endured many rounds of briefing, a trip to the Court of Appeals, and a three-day bench trial before the present Motions were filed. The Court will briefly address the procedural history of the case before recounting its factual findings articulated at the conclusion of the trial.

A. Procedural History

Ashraf-Hassan, formerly employed by the French Embassy as its intern coordinator, filed this lawsuit against the Embassy in April 2011. Her Amended Complaint alleged various forms of workplace discrimination and harassment due to her national origin, race, religion, and pregnancy, and in retaliation for protected activity, in violation of Title VII of the Civil Rights Act of 1964. See ECF No. 5. The Embassy initially moved to dismiss the Complaint, see ECF No. 11, and the Court granted its Motion as to four counts pertaining to Plaintiff’s termination but denied it as to the remaining four counts, which raised hostile-work-environment claims. See Ashraf-Hassan v. Embassy of France, 878 F.Supp.2d 164, 175 (D.D.C. 2012).

Following several months of discovery, the Embassy moved for summary judgment on August 26, 2013. See ECF No. 32. The Court denied that motion on November 19. See Ashraf-Hassan v. Embassy of France, 999 F.Supp.2d 106, 117 (D.D.C. 2013). The Embassy then moved for reconsideration, which the Court also denied, on January 16, 2014. See ECF Nos. 38, 45. While briefing continued on the parties’ dueling motions in limine, the Embassy moved to dismiss the suit for lack of jurisdiction, arguing that it had withdrawn its prior waiver of immunity. See ECF No. 51. The Court denied that Motion, see ECF No. 56, and the Embassy filed an interlocutory appeal. See ECF No. 59. The D.C. Circuit affirmed the Court’s Order, see ECF No. 65, and, at long last, a bench trial was scheduled.

That trial on the remaining hostile-work-environment counts began on January 27, 2016, and lasted three days. On February 11, the Court reconvened the parties to deliver an oral verdict. See Minute Order of Feb. 11, 2016.

B. Oral Verdict

1. Findings of Fact

The Court commenced by summarizing the evidence presented at trial and making credibility determinations regarding the five witnesses who had testified – Plaintiff herself and four defense witnesses. See Verdict Transcript at 4:10-12. The Court initially found that three of the defense witnesses – Jean Claude Marfaing, Phillip Righini, and Gilles Cottet-Dumoulin – “are really inconsequential.” Id. at 4:12-16. While the Court found them generally credible, their testimony did not “shed any light on the facts” in the case. See id. at 4:17-18. This left two key witnesses: Plaintiff and Chantal Manes, her manager. At trial, Manes testified via videoconference from Paris, and the Court also agreed to view a recording of her full, three-hour deposition, after the parties stipulated to its admissibility. See id. at 5:2-6. The Court determined that Manes was a “fairly credible witness, ” as “[h]er demeanor and the contents of her answers generally struck [the Court] as reasonable.” Id. at 5:7-9. The Court did not, however, find her credible as to “the attempted termination issue” – more on that later – or as to “other facts that she was never asked to rebut.” Id. at 5:10-11. As for Plaintiff, who testified at length, the Court found that “she had a good recall for events, and appeared largely credible in her recounting of them, ” though she occasionally exaggerated some incidents “or construed them to be more offensive than they were.” Id. at 5:14-20.

With these credibility determinations as its foundation, the Court then relayed its factual findings: Plaintiff, a Muslim, was born in Pakistan, moved to France as a child, and became a French citizen in the 1990s. See id. at 6:6-8. She got a job at the French Embassy in the District of Columbia in 2001, arriving in the United States in October of that year on an A-2 visa. See Id. at 6:12-14. At the Embassy, her department supervisor was Chantal Manes, a white non-Muslim, who was the head of the cultural program. See id. at 6:15-16. Ashraf-Hassan worked as an intern on a probationary contract from October 2001 to February 2002, during which time she managed the Embassy’s internship and exchange program. See id. at 6:19-23. She was later hired as a local employee and became an interim program officer in February 2002. See id.

The Court found that during Ashraf-Hassan’s probationary employment, Manes asked her, multiple times, why “your people are doing this, ” in relation to terrorism. See id. at 7:1-8. The Court found that Manes knew that Plaintiff was a Muslim, as she asked for leave on Muslim religious holidays and indicated on her contract that her country of origin was Pakistan. See Id. at 7:9-12.

The Court next discussed the “much disputed pregnancy” incident, which resulted in the brief termination and subsequent reinstatement of Plaintiff in the spring of 2002. See id. at 7:13-14. This was an event central to the lawsuit, though the parties differed in their accounts of the incident. According to Plaintiff, in March 2002, she went to the doctor and learned she was pregnant. See id. at 7:14-15. Upon returning to work, she told Manes’s secretary about her pregnancy, and Manes, who overheard their conversation, told Ashraf-Hassan, “[W]e need to talk.” Id. at 7:16-17. The next day, Manes “lectured her for 40 minutes on family planning and said she should not be pregnant when starting a new job.” Id. at 7:19-20. Then, “on April 16, Manes summoned the plaintiff to her office to say that she was being fired.” Id. at 8:1-2. Manes, in contrast, testified that Ashraf-Hassan had first brought up her pregnancy that day – April 16 – and Manes had told her that this was “late to mention it given the start of her new job.” Id. at 8:2-6. According to Manes, Plaintiff then rejoined that she had told Manes about her pregnancy a month earlier. See id. at 8:6. Manes, believing her to be lying about sharing the news of her pregnancy in March, declared that she had lost trust in Ashraf-Hassan and was firing her for that reason. See id. at 8:7-9. At trial, Manes also denied that the lecture on contraception had ever taken place. See id. Both parties agreed that although Manes did fire her, Ashraf-Hassan returned to work a week after this incident, as a result of the Ambassador’s decision to countermand Manes’s termination order. See id. at 9:19-21.

The Court noted that the pregnancy incident is “hard to get a handle on, ” see id. at 8:10, given the key witnesses’ conflicting testimony. While Plaintiff’s account at trial was corroborated by her contemporaneous statement in an April 16 letter she wrote to the Secretary General of the Embassy, her deposition testimony was “somewhat confusing and seems to agree that she didn’t tell Manes until April 16 about her pregnancy.” Id. at 8:15-17; see also Pl. Trial Exh. 2 (April 16, 2002, Letter from Plaintiff to Secretary General). Ultimately, the Court found that Plaintiff’s account of the pregnancy incident was more believable than Manes’s version of the event. See Verdict Trans. at 8:22-24.

A key factor in that determination was that because Plaintiff was the third employee in a small department to disclose her pregnancy in a short window of time, Manes was “frustrated that she would lose these employees as they took pregnancy leave . . . [and] put an undue burden on her department.” Id. at 8:24-9:4. Critically, the Court was not persuaded by Manes’s explanation of why she terminated Ashraf-Hassan on April 16, 2002: “Her account of firing the plaintiff solely for loss of trust doesn’t seem to hold water. It seems a very odd and disproportionate response if that is really the reason. The reason seems to me much more clearly that she fired her because she was pregnant.” See id. at 9:5-19. The Court also stated that Plaintiff was “generally credible” when testifying about the family-planning lecture, which, furthermore, seemed “an unusual thing to make up, ” so the Court found that it likely had occurred – though Plaintiff’s account of it was probably somewhat exaggerated. See id. at 9:14-18. The Court ultimately concluded, therefore, that the evidence showed that Manes had lectured Ashraf-Hassan about contraception when she learned about the pregnancy and then subsequently fired Plaintiff for being pregnant.

After Plaintiff returned to work, Manes generally treated her professionally, and they worked together at the Embassy until Manes left in September 2005. Id. at 9:22-24, 10:16-17. Those years were not entirely without incident, however. On one occasion, an assistant said, within earshot of Plaintiff, “Now we hire terrorists, ” and Manes appeared to Plaintiff to assent. See id. at 10:1-7. On another occasion, Manes told Plaintiff not to accept an intern from France at the Embassy named Nabil because the Embassy “should not hire people like him, ” and the Court inferred that Manes did not think a Muslim or potential Muslim should be hired by the Embassy. See id. at 10:11-16. These were the Court’s key findings about Ashraf-Hassan’s relationship with Manes.

In addition, the Court made findings about Plaintiff’s relationship with another one of her supervisors, Christian Tual. In October 2004, Ashraf-Hassan began working for Tual in part, see id. at 10:21-24 – she was still also working under Manes – and the Court found that unlike Manes, Tual was something of a “mercurial figure, prone to outbursts and anger.” Id. at 11:1. Tual, on repeated occasions, expressed hatred for “Chinese, Indians and Pakistanis, ” and once suggested that Plaintiff should work for the Pakistani Embassy, where he thought she would “be happier, ” notwithstanding her French citizenship. Id. at 11:2-10. The Court did find that Plaintiff had exaggerated various aspects of her account of her interactions with Tual – e.g., that he called her children dogs or inappropriately forced her to make coffee and perform other personal tasks for him. See id. at 11:11-24. It nevertheless concluded that her testimony about some of Tual’s hostile conduct was bolstered by her letters to various supervisors “to complain . . . regarding Tual particularly.” Id. at 12:1-11 (citing Plaintiff’s Trial Exhibits 5, 6, 16, and 17 as corroborating evidence).

One specific incident with Tual took center stage at trial. On January 3, 2007, Tual wrote an email to another Embassy employee, who showed it to Ashraf-Hassan, in which he twice referred to Plaintiff as “the Pashtun” and stated that he hoped she would have her phone and computer taken away from her and would “be confined in a box room for interns” until she left her position. See id. at 12:15-13:9. The Court found that this email “demonstrates . . . Tual’s attitude, and it was also a fact Plaintiff was aware of, having seen it.” Id. at 13:10-11. It determined that Ashraf-Hassan could “justifiably feel that [the term ‘Pashtun’] had a negative connotation and was again along the same lines of calling her a terrorist.” Id. at 13:6-8. The Court found, furthermore, that Ashraf-Hassan was, in fact, moved to a room for interns and denied access to her telephone and computer toward the end of her time at the Embassy.

Shortly after the “Pashtun” incident, Ashraf-Hassan was terminated. She was told in December 2006 that her contract would not be renewed, and her time at the Embassy concluded at the end of January 2007. Id. at 12:12-14. The Court found that the mistreatment she suffered before her ultimate termination “caused her to lose her appetite, not sleep well, and to have nightmares, ” although she never sought medical treatment for such ailments. See id. at 13:17-20.

2. Conclusions of Law

Although the Court had already set forth the legal principles governing Title VII claims in its prior Opinions, see Ashraf-Hassan, 999 F.Supp. at 113-17, it summarized the relevant standards before offering its conclusions of law in its verdict. The Court began by noting Title VII’s broad prohibition on discrimination against any individual with respect to her compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or natural origin. See Verdict Trans. at 14:1-6; see also 42 U.S.C. §§ 2000e et seq. Further, “[d]iscrimination on the basis of pregnancy is considered discrimination on the basis of sex.” Verdict Trans. at 14:5-6; see also Ashraf-Hassan, 999 F.Supp.2d at 113. The Supreme Court has held that Title VII’s discrimination prohibition makes it unlawful for an employer to require people to work in discriminatorily hostile or abusive environments. See Verdict Trans. at 14:7-9; see also Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993).

To prevail on a hostile-work-environment claim, an employee must demonstrate that her employer subjected her to “discriminatory intimidation, ridicule[, ] and insult that is sufficiently severe or pervasive to alter the conditions of [her] employment.” Verdict Trans. at 14:9-14; see also Baloch v. Kempthorne, 550 F.3d 1191, 1201 (D.C. Cir. 2008). In determining whether the employee has made such a showing, courts look to “the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, its offensiveness, and whether it interferes with [the] employee’s work performance.” Verdict Trans. at 14:15-19; see also Baloch, 550 F.3d at 1201 (citing Faragher v. City of Boca Raton, 524 U.S. 775, 787-88 (1998)). Although a plaintiff may not combine discrete acts to form a hostile-work-environment claim without meeting the required hostile-work-environment standard, neither can a court dismiss such a claim merely because it contains a number of discrete acts that are actionable on their own. See Verdict Trans. at 15:1-7 (citing Baird v. Gotbaum, 662 F.3d 1246, 1252-53 (D.C. Cir. 2011)). At the same time, Title VII is not a license for “courts to police the ordinary tribulations of the workplace.” Id. at 14:23-25.

Applying these standards to its findings of fact, the Court then concluded that, although “this is a reasonably close case, largely because the standard for hostile work environment is very high, ” Plaintiff had nevertheless succeeded in establishing that the discriminatory conduct of Manes and Tual “was sufficiently pervasive to change the terms and conditions of [her] employment.” Id. at 15:8-17. One key fact that weighed heavily on this conclusion was the attempted termination, accompanied by the contraception lecture, shortly after Plaintiff announced her pregnancy. Id. at 15:18-25. The Court ultimately agreed with Ashraf-Hassan’s theory of the case: “that her pregnancy was treated differently from that of her white non-Muslim French origin coworkers who were not temporarily fired” after informing Manes of their pregnancies. See id. at 16:3-6. Manes’s prior behavior toward Ashraf-Hassan – including her disparaging comments about Muslims – confirmed that the attempted firing was “an event based on race, national origin and/or religion, ” and was “part and parcel of a hostile work environment based on those protected characteristics.” Id. at 16:7-11. Other contributors to that hostile environment included Manes’s making or endorsing a number of “derogatory comments about Plaintiff being linked to terrorists because of her race, national origin, [and/or] religion, ” ...

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