United States District Court, District of Columbia
OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS'
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY
JUDGMENT; DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE
FOURTH AMENDED COMPLAINT; GRANTING PLAINTIFF'S MOTION TO
ADD NEWLY ACQUIRED EVIDENCE
RUDOLPH CONTRERAS United States District Judge.
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.
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 claim (Count 6); his wrongful
discharge claim (Count 13); and his claim of retaliation
based on 2009 events (asserted in Count 16). As explained
below, the individual defendants must be served so that they
may respond to Count 5, and genuine disputes of material fact
exist on the other three counts, which the parties should
explore during discovery. The Court will accordingly deny
Defendants' motion with respect to these four counts.
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.
Employment as an FSI Contractor (1999-2011)
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
would renew his contract. See Compl. ¶¶
74-75. When he started working at FSI, Dr. Coulibaly reports
that Dr. Jane Kamide was the head of the French section, and
that Solomon Atayi served as her deputy. Id. ¶
Discussions About Political Statements
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
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.
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.
Efforts to Become an FSI Employee
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 accept a
direct-hire position, and that Dr. Coulibaly responded in the
affirmative. Id. ¶¶ 50-51. Dr. Coulibaly
therefore "expecte[d] his appointment by Associate Dean
James North sometime soon after this conversation."
Id. ¶ 51.
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 Deck ¶¶ 3, 5;
see Position Description (showing Dr.
Coulibaly's name in Box 17).
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.
FSFs 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.
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
parking permit. . ., just to show he was the boss."
Id. ¶ 74. Dr. Coulibaly further alleges that
Mr. Atayi made him beg for his contract renewal each year.
Id. ¶¶ 74-75. And Mr. Atayi had
purportedly told him that "if [he] want[ed] to be [a]
direct hire, [he] just need[ed] to have an affair with Dr.
Jane Kamide, " the head of FSFs French section before
Mr. Atayi. Id. ¶ 73.
Alleged Workplace Violence
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. He claims that, after he informed his
then-supervisors about the incident, "[t]hey ignored his
claim and did nothing." Notice of Right to File a
Discrimination Complaint ¶ 3. Dr. Coulibaly allegedly
then "went to Diplomatic Security" to report the
incident, but also received no redress from that source:
another FSI manager, Debra Blake, purportedly told him that
"this investigation must be closed." Id.
(internal quotation mark omitted).
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").
Further Efforts to Become an FSI Employee
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 FSFs 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).
Employment as an FSI Employee (2011-2012)
19, 2011, FSI at last hired Dr. Coulibaly as an employee.
See Compl. ¶¶ 46, 121; Notification of
Personnel Action, Defs.' Facts Ex. C, ECF No. 30-3
(showing that Dr. Coulibaly began working as a Department of
State employee on June 19, 2011). Dr. Coulibaly's
appointment as an employee was for a term of two years, which
included a one-year trial period. See Notification
of Personnel Action (noting Dr. Coulibaly's temporary
appointment and one-year trial period); Statement of
Understanding, Defs.' Facts Ex. E, ECF No. 30-5 (noting
Dr. Coulibaly's two-year appointment). Upon his hire, Dr.
Coulibaly signed a statement of understanding, thereby
accepting that he could "be terminated at any time
depending on the needs of the [Department of State]."
See Statement of Understanding.
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 "providing] 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. During Dr. Coulibaly's
employment at FSI, as before, James North served as FSI's
Associate Dean. See North Aff ¶¶ Q1, Q3,
Defs.' Facts Ex. G, ECF No. 30-7. When Dr. Coulibaly
first began working as an employee, Language Training
Supervisor (LTS) Laura Fyfe, who is white and from the United
States, served as Dr. Coulibaly's first-line supervisor.
See Fyfe Aff. ¶¶ Q1, Q3-Q6, Q46,
Defs.' Facts Ex. H, ECF No. 30-8. Starting in January
2012, LTS Phillipe Casteuble, who is white and from France,
served as Dr. Coulibaly's new first-line supervisor.
See Casteuble Aff. ¶¶ Q1, Q3-Q6,
Defs.' Facts Ex. J, ECF No. 30-10.
Alleged Preferential Treatment Toward Colleague
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. ¶
Dr. Coulibaly alleges that he complained about favoritism
that FSI showed toward Mr. Hmimiche, but that his action
resulted in Director Blake becoming "mad" and
"very agitated." Id. Dr. Coulibaly
contends that Director Blake's emotional response was a
motive for later retaliation and adverse actions taken
against Dr. Coulibaly. See id.
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); see also De Launay-Fogg
Aff, EEO Investigation Report at 1374-76, Coulibaly v.
Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-12
(reproducing Ms. De Launay-Fogg's
affidavit). She states that Dr. Coulibaly and Mr.
Hmimiche became employees on the same day, but that they
"were treated very differently." De Launay-Fogg Aff
¶ Q6, EEO Investigation Report at 1375. Mr.
Himiche's preferential treatment, she asserted, arose
from the fact that he and Director Blake were a "couple,
" a fact that Ms. De Launay-Fogg contends was
"common knowledge" at FSI. Id. She asserts
that she saw Director Blake "caressing" Mr.
Hmimiche's neck, that Mr. Hmimiche was "always
running into [Director Blake's] office, " and that
"[m]any times, they were seen . . . leaving the school
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
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.
Conflict with Supervisor Laura Fyfe
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 that the lesson plan goal was "based
on student feedback that he was teaching without a lesson
plan." Email from Ann Keller-Lally (Nov. 9, 2011), EEO
Investigation Report at 93, ECF No. 36-3.
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.
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. In her August 19, 2011 email, LTS Fyfe
told Dr. Coulibaly to "prepare a reading lesson"
for his class based on "the four P's" method.
See Email from Laura Fyfe to Tiemoko Coulibaly (Aug.
19, 2011), EEO Investigation Report at 733, Coulibaly v.
Kerry, No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
days later, on August 24, 2011, Dr. Coulibaly submitted his
reading lesson plan to LTS Fyfe. LTS Fyfe later characterized
Dr. Coulibaly's lesson plan as "a template for
writing a lesson plan-not an actual lesson plan." Email
from Laura Fyfe (Nov. 7, 2011), EEO Investigation Report at
722. LTS Fyfe states that she told Dr. Coulibaly during the
following week that the plan was "a beginning" and
then asked Dr. Coulibaly to make improvements- namely, to
include a specific article for reading and to "address
some of the specifics of the article and the timing and level
of the lesson." See Id. at 721-23 (reproducing
an email from August 30, 2011). According to LTS Fyfe, Dr.
Coulibaly responded later that day and requested
clarification about whether his lesson plan was satisfactory.
See Id. at 723 ("I would be grateful if you
could tell me if this 'beginning' is appropriate or
not for you, if it is good or not, so I could try to improve
it."). LTS Fyfe claims that she responded to Dr.
Coulibaly's request by giving him "specific
questions." See id.
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), ECF No. 26-7. LTS Fyfe then clarified that she found
the August lesson plan to be unsatisfactory. See
Email from Laura Fyfe to Tiemoko Coulibaly (Oct. 5, 2011),
EEO Investigation Report at 732, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7 ("[W]hen
I wrote, 'this is a beginning, ' I was suggesting
that [the August lesson plan was] not complete and
[that] it needed to be revised." (emphasis in
original)). In response, Dr. Coulibaly expressed that he was
"confused and unclear about what to do exactly" and
stated that he "would appreciate" a time to meet
with LTS Fyfe for clarification. See Email from
Tiemoko Coulibaly to Laura Fyfe (Oct. 5, 2011, 12:36 PM), EEO
Investigation Report at 731-32, Coulibaly v. Kerry,
No. 14-0712 (D.D.C. Mar. 4, 2016), ECF No. 26-7.
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.
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.
Communications with Second-Line Supervisors
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.
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 his confusion with respect to LTS
Fyfe's instructions, and that LTS Fyfe felt that her
instructions were clear. See Id. at 754-55. In
particular, Acting Director Keller-Lally's notes indicate
that Dr. Coulibaly found LTS Fyfe's "four
P's" method confusing, because another colleague had
told Dr. Coulibaly that the method "was not particularly
applicable with regard to reading lessons." Id.
at 754. According to Acting Director Keller-Lally's
notes, LTS Fyfe acknowledged "[l]ater in the
meeting" that Dr. Coulibaly was "rightly
confused." Id. Apart from the "four
P's" method, Dr. Coulibaly also reportedly expressed
that he felt "hostility" from LTS Fyfe, and that
"he was sure whatever he proposed would be
rejected." Id. at 754-55. In response, LTS Fyfe
reportedly stated that her goal was to help Dr. Coulibaly to
"do the best he could" and felt that she had simply
"said some things that [Dr. Coulibaly] did not want to
hear." Id. at 756. According to Acting Director
Kellar-Lally's notes, LTS Fyfe ultimately "offered
to drop the reading lesson plan project, " and instead
requested that Dr. Coulibaly attend formal trainings.
Id. at 755-56.
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.
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
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 at 773-74, ECF No. 36-4. In her notes documenting this
conversation, Director Blake claimed that her purpose in
calling the meeting was to determine "precisely what
actions" Dr. Coulibaly felt were evidence of LTS
Fyfe's "discrimination and hostility."
Id. at 773. According to Director Blake, Dr.
Coulibaly was initially "reluctant" to articulate
specific allegations of discrimination and hostility, but he
then cited the fact that LTS Fyfe's "former husband
shared the same country of origin" as Dr. Coulibaly, as
well as allegations that LTS Fyfe treated Dr. Coulibaly
unfairly in the way that she supervised him. See Id.
Director Blake shared her notes of the meeting with Dr.
Coulibaly the next week. See Email from Debra Blake
to Tiemoko Coulibaly (Nov. 22, 2011), EEO Investigation
Report at 764-65, ECF No. 36-3.
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.
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.
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. According to Director
Blake, Dr. Coulibaly acknowledged that he had not submitted
the weekly syllabi, but claimed that he had been too busy.
Blake Mem. (Dec. 14, 2011), EEO Investigation Report at 787,
ECF No. 36-4. Director Blake further reports that Dr.
Coulibaly continued to allege that "he felt
discriminated against and felt he was being treated unfairly,
" particularly when compared to "one other
instructor who entered on duty on the same date."
Id. Dr. Coulibaly commented the next day that, at
their meeting, he had "clearly insisted on the issue of
discrimination" and that he had noted "the
different standards between teacher Hmimiche AitMouloud
('Mimiche')" and himself. Email from Tiemoko
Coulibaly (Dec. 15, 2011), EEO Investigation Report at
785-86, ECF No. 36-4. Dr. Coulibaly also states that he had
questioned whether Mr. Hmimiche had been held to the syllabus
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. Dr. Coulibaly
filed a formal EEO complaint on December 20, 2011.
See Compl. ¶ 95; Formal Compl. of
Discrimination, EEO Investigation Report at 62-63, ECF No.
36-3. The complaint alleged that FSI management had
discriminated against Dr. Coulibaly on the basis of race,
color, and national origin and had committed
"reprisal" against him. See Formal Compl.
of Discrimination, EEO Investigation Report at 62-64, ECF No.
36-3. The complaint brought up issues relating both to Dr.
Coulibaly's recent conflicts with his supervisors and to
Dr. Coulibaly's allegations relating to events in 2009.
See Id. at 64; see also supra Part II.
A.4-5 (discussing events Dr. Coulibaly alleges occurred in
2009). The Office of Civil Rights filed Dr. Coulibaly's
complaint under EEO Case Number DOS-F-025-12. See
Letter from Jacqueline Canton to Tiemoko Coulibaly, EEO
Investigation Report at 58, ECF No. 36-3.
Performance Appraisal Report
in December 2011, Dr. Coulibaly received a Performance
Appraisal Report ("PAR") from LTS Fyfe that noted
"several issues" with Dr. Coulibaly's
performance.LTS Fyfe noted that Dr. Coulibaly was
"continu[ing] to attempt to repair" his performance
with respect to those issues. PAR Report by Laura Fyfe, EEO
Investigation Report at 790, ECF No. 36-4.
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
retaliation" in the PAR, given that, according to Dr.
Coulibaly, "these disputes clearly influenced [their]
performance report." Id. at 789.
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).
Event for FSFs French Language and Culture Instructors
next day, on December 29, 2011, Dr. Coulibaly attended an
event for FSFs 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.
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
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.
Conflict with New Supervisor Philippe Casteuble
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. But, during the meeting, LTS Casteuble
presented Dr. Coulibaly with a memorandum that outlined an
"informal counseling session" regarding Dr.
Coulibaly's conduct at the December 29, 2011 meeting and
that reprimanded him for his conduct at that
meeting. LTS Casteuble's memorandum surprised
Dr. Coulibaly, who had believed that the January 24 meeting
"was only about expectations on teaching." Email
from Tiemoko Coulibaly (Jan. 27, 2012), EEO Investigation
Report at 813-14. Dr. Coulibaly was further surprised by the
fact that a human resources representative was present for
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
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 could
attend. But the February 6, 2012 meeting
ultimately did not occur: even though Dr. Coulibaly emailed
LTS Casteuble to confirm the meeting time on February 6, LTS
Casteuble claimed that, based on prior communications, he
"could not know if the date and time was accepted, by
[Dr. Coulibaly] and by the union
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
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.
Absence from Work
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 not return to work prior to March 26,
2012."). FSI human resources documents reflect
that, beginning on Monday February 15, 2012 and until Friday
March 23, 2012, Dr. Coulibaly took a combination of sick
leave, annual leave, and leave without pay for six weeks.
See Defs.' Facts. Ex. Q, at 1315, 1317, ECF No.
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.
Subsequent Procedural History
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.
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.
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 conspired with the MSPB to dismiss whistleblower
claims that he had brought before the MSPB. See
Defs.' Facts Ex. W, ¶ 39. The Office of Civil Rights
dismissed this claim on June 24, 2014, and held that Dr.
Coulibaly should have also lodged this claim with the MSPB
itself, instead of the Department. See Defs.'
Facts Ex. X (reproducing the dismissal letter).
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). In those claims, Dr. Coulibaly had
alleged that the Department had failed to provide him with a
reasonable accommodation for his supervisor and had
improperly handled the processing of his medical
documentation. See Id. at 56, ECF No. 36-2. The
Department dismissed the claim because it held that he had
not timely brought his claim to an EEO counselor and because
his claim failed to "allege present harm to a term,
condition, or privilege of employment inflicted on the basis
of [a protected class]." Id. at 56-58, ECF No.
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; id. Ex. CC, ECF No. 30-29. He
filed three FTCA claims against members of the MSPB, seeking
damages in the amounts of $5, 000, 000; $55, 000, 000; and
$60, 000, 000. See Id. Ex. C, at 2-3; id.
Ex. EE, ECF No. 30-31. And Dr. Coulibaly filed two FTCA
claims against the EEOC, seeking damages in the amounts of
$25, 000, 000 and $50, 000, 000. Id. Ex. C, at 4;
id. Ex. DD, ECF No. 30-30.
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),
(reproducing the entire report, but with some portions
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 2013, but that
the stamp was later crossed out). But that the complaint was
not docketed until February 10, 2014. See ECF No. 1
(showing that the initial complaint was stamped
"Filed" on February 10, 2014). In a pre-answer
motion, Defendants move to dismiss the complaint or, in the
alternative, for summary judgment. See Defs.'
Mot. Dismiss or, in the Alt., for Summ. J., ECF No. 30.
Combined with his opposition brief, Dr. Coulibaly has filed a
motion for leave to file a fourth amended complaint.
See Pl.'s Resp., ECF No. 36. Dr. Coulibaly also
later filed a motion to add newly acquired evidence to the
record. See Pl.'s Mot. Add Newly Acquired Evid.,
ECF No. 39.
the Court addresses the merits of the parties' respective
motions, the Court addresses Defendants' suggestion that
the Court strike Dr. Coulibaly's opposition brief.
Length of Dr. Coulibaly's Opposition Brief
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.
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
apro 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.
Tort and Contract Claims
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
following counts of the complaint appear to allege tort or
(1) Count 7, which alleges intentional and negligent
infliction of emotional distress, see Compl.
(2) Count 8, which alleges active concealment of Dr.
Coulibaly's 2007 hiring and contends that the concealment
is evidence of misrepresentation and fraud, see Id.
(3) Count 9, for promissory fraud, id. ¶¶
(4) Count 10, which appears to allege a breach of an implied
covenant of good faith and fair dealing, see Id.
(5) Count 11, which alleges promissory estoppel, id.
(6) Count 16, which broadly alleges that Dr. Coulibaly timely
exhausted his FTCA claims for infliction of emotional
distress, see Id. ¶¶ 143-64;
(7) The first of the two counts labeled "Count 19"
in Dr. Coulibaly's complaint, which alleges defamation
and character assassination, id. ¶¶
(8) Count 21, which alleges conspiracy to commit fraud,
extortion, infliction of emotional distress, and personal
injury under the FTCA, see Id. ¶¶ 207-08.
turning to the merits of these claims, however, the Court
reviews the legal standard for Defendants' motion to
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
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
(2004) (quoting Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377 (1994)). It is the plaintiffs
burden to establish that the court has subject matter
jurisdiction. Lujan v. Defenders of Wildlife, 504
U.S. 555, 561 (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).
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
(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 (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. Mitchell, 445 U.S. 535, 538(1980)).
sovereign immunity is a jurisdictional issue, FDIC v.
Meyer, 510 U.S. 471, 475 (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).
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 (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)).
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.
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 plaintiffs
favor. See, e.g., United States v. Philip Morris,
Inc., 116F.Supp.2d 131, 135 (D.D.C. 2000). A Rule
12(b)(6) motion does not test a plaintiffs 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 (1974), abrogated on other
grounds by Harlow v. Fitzgerald, 457 U.S. 800 (1982);
Brewer v. Dist. of Columbia, 891 F.Supp.2d 126, 130
"[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 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This means that a plaintiffs 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 (citations
and footnote omitted). "Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, " are therefore insufficient to withstand a
motion to dismiss. Iqbal, 556 U.S. at 678. A court
need not accept ...