United States District Court, District of Columbia
MEMORANDUM OPINION DENYING THE PARTIES'
CROSS-MOTIONS FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S
MOTIONS TO ADD NEWLY ACQUIRED EVIDENCE
RUDOLPH 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
(collectively, “Defendants”). Dr. Coulibaly
alleges that by firing him, Defendants violated Title I of
the Family and Medical Leave Act of 1993
(“FMLA”), 29 U.S.C. §§ 2601-2654. The
parties now move for summary judgment. After filing his
cross-motion for summary judgment, Dr. Coulibaly also moved
twice to add newly acquired evidence to the record.
Defendants have not shown that Title II of the FMLA governs
this suit, the Court will deny Defendants' motion for
summary judgment with respect to that argument. And because a
genuine issue of material fact remains with respect to
whether retaliation for FMLA-protected activities actually
motivated Defendants' decision to terminate Dr.
Coulibaly's employment, the Court will deny the
parties' motions for summary judgment on the merits of
Dr. Coulibaly's FMLA claim. Because the additional
evidence that Dr. Coulibaly provided does not affect the
Court's conclusion about the remaining issue of material
fact, the Court will deny Dr. Coulibaly's motions to add
newly acquired evidence.
Employment as an FSI Contractor (1999-2011)
Coulibaly joined the Department of State's Foreign
Service Institute (“FSI”) as a French instructor
in 1999. Compl. ¶ 4, ECF No. 1; Defs.' Stmt.
Material Facts Supp. Cross-Mot. Summ. J. & Opp'n
Pl.'s Mot. Summ. J. (“Defs.' Stmt.”)
¶ 1, ECF No. 27-1. As an instructor, Dr. Coulibaly
taught students speaking, reading, listening comprehension,
and writing skills, and he provided input for planning,
design, development, and evaluation of course content.
Defs.' Stmt. ¶¶ 5-6, 9; see also
Position Description, Pl.'s Mot. Summ. J. Ex. F, ECF No.
23-2, at 26- 27. According to several of his colleagues,
Dr. Coulibaly was well-regarded by his students and
colleagues during this time.
initially hired Dr. Coulibaly as a contractor under a series
of Blanket Purchase Agreements (“BPAs”).
See Compl. ¶¶ 75, 83; Defs.' Stmt.
¶¶ 2-3; see also, e.g., BPA Contract
Modification, Pl.'s Mot. Summ. J. Ex. A, ECF No. 23-1, at
111-22 (modifying Dr. Coulibaly's BPA with an updated
description of his work responsibilities, and indicating that
the modified BPA would take effect on November 10, 2010).
These BPAs stated that Dr. Coulibaly was a contractor only,
and not an employee. See Defs.' Stmt. ¶ 4;
see, e.g., BPA Contract Modification at 120
(“Awardees of a [BPA] are not civil service or Foreign
Service employees of the United States Government, and . . .
should not identify themselves as Government employees either
orally or in writing.”). The BPAs also required Dr.
Coulibaly to submit invoices to the State Department to
receive payment. See Defs.' Stmt. ¶ 3;
see, e.g., BPA Contract Modification, at 119
(“Contractors will submit invoices bi-weekly for hours
worked through presentation of a Work Schedule and an invoice
to the FSI Budget Office.”).
Excepted Service Appointment at FSI (June 2011)
19, 2011, Dr. Coulibaly began a two-year Excepted Service
appointment within the Department of State as a French
instructor. See Compl. ¶¶ 75, 83;
Defs.' Stmt. ¶¶ 5-7; see also Letter
from Swati Limaye to Tiemoko Coulibaly (May 27, 2011), Compl.
Ex., ECF No. 1-1, at 113-14. Under this appointment, Dr.
Coulibaly performed substantially the same duties as he had
while he was a contractor. See Compl. ¶¶
75, 83; Defs.' Stmt. ¶¶ 5-7. His appointment
was subject to an initial one-year trial period. See
Compl. ¶¶ 75, 83; Defs.' Stmt. ¶ 8.
Conflict with Supervisor Laura Fyfe (July 2011-November
his appointment, Dr. Coulibaly initially reported to Language
Training Supervisor (“LTS”) Laura Fyfe.
See Compl. ¶ 6; Defs.' Stmt. ¶ 11. The
record contains several email chains that document the
interactions between LTS Fyfe and Dr. Coulibaly during the
first few months of his employment. See, e.g., Email
from Laura Fyfe (Nov. 7, 2011, 7:23 PM), ROI at 721-24, ECF
No. 26-7; Email from Ann Keller-Lally to James North (Nov. 8,
2011, 9:38 AM), ROI at 725-34, ECF No. 26-7.
such email, LTS Fyfe states 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,
7:23 AM), ROI at 721. LTS Fyfe said that, during the
discussion, she recommended to Dr. Coulibaly that he
“work on his teaching portfolio by developing a
specific skill since he [didn't] have pedagogical
training.” Id. When Dr. Coulibaly replied that
he did not know how to do that, she told him to develop a
“reading lesson plan.” Id. This reading
lesson plan later became a point of contention. See
Id. at 721-22.
Fyfe reports that in advance of a planned observation of Dr.
Coulibaly's class the following month, she requested
class readings from Dr. Coulibaly. See Id. at 721.
According to LTS Fyfe, Dr. Coulibaly responded by stating
that he felt that his students were not yet ready to read.
See Id. LTS Fyfe later opined that the reading delay
was “out of the ordinary” in a 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.
Fyfe observed Dr. Coulibaly's class on August 18, 2011,
as planned. 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 (Aug. 19, 2011, 12:02 PM),
ROI at 733.
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, 7:23 PM), ROI 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 the students to read and to
“address some of the specifics of the article and the
timing and level of the lesson.” Id. at 722-23
(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.
than a month later, LTS Fyfe says that she again requested a
reading lesson plan. See Id. Two days after her
second request, Dr. Coulibaly responded by forwarding LTS
Fyfe the same generic lesson plan that he had sent her in
August. See Email from Tiemoko Coulibaly (Oct. 5,
2011, 8:55 AM), ROI at 732-33, ECF No. 26-7. LTS Fyfe then
clarified that she found the August lesson plan to be
unsatisfactory. See Email from Laura Fyfe (Oct. 5,
2011, 11:24 AM), ROI at 732, 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)). Dr. Coulibaly said 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 (Oct. 5, 2011, 12:36 PM), ROI at 731-32, ECF No.
26-7. LTS 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,
7:23 PM), ROI at 724. LTS Fyfe asserts that, instead, she
delegated the matter to another FSI employee, Dora Chanesman.
See id.; Email from Laura Fyfe (Nov. 4, 2011, 9:57
AM), ROI at 731, ECF No. 26-7.
early November 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 a writing lesson plan, [she had] asked Dora Chanesman
[to] assist [him] with the process.” Email from Laura
Fyfe (Nov. 4, 2011, 9:57 AM), ROI 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 (Nov. 4, 2011, 7:11 PM), ROI at 728, ECF No. 26-7.
Disputing the idea that it was his fault they did not 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 (November
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 (Nov. 7, 2011, 1:41 PM), ROI at 727, 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 (Nov. 7, 2011, 5:01 PM), ROI at
725-26, ECF No. 26-7.
meeting occurred the next day, on November 8, 2011.
See Email from Ann Keller-Lally (Nov. 9, 2011, 4:12
PM), ROI at 754-56, ECF No. 26-7 (memorializing the
conversation from the meeting in writing). During the
meeting, Acting Director Keller-Lally's notes state that
she held a meeting with 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 later in the
meeting acknowledged 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” if Dr. Coulibaly would attend formal trainings
instead. 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, 5:03 PM), ROI at 743-49, ECF No. 26-7. 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 747 (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 his accusations had no basis, but she admitted
that she “was brought to tears” during the
meeting and “did ask [Dr. Coulibaly] if he had an ax to
grind against [her] because of [her] ex.” Email from
Laura Fyfe (Nov. 15, 2011, 5:42 PM), ROI at 743, ECF No.
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), ROI at 773-74, ECF
No. 26-7. 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, 11:43 AM), ROI at
764-65, ECF No. 26-7.
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, 9:01 PM), ROI at 764, ECF No. 26-7;
Coulibaly Mem. (Nov. 23, 2011), ROI at 766-72, ECF No. 26-7.
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), ROI 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), ROI at 761-62, ECF No. 26-7 (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), ROI at 761, ECF No. 26-7.
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), ROI at 761, ECF No.
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), ROI at 787. 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, that 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, 5:35 PM), ROI at
785-86, ECF No. 26-7. Dr. Coulibaly also states that he had
questioned whether “Mimiche” had been held to the
syllabus requirement. Id.
EEO Complaint (December 20, 2011)
the time that he was communicating with Director Blake, Dr.
Coulibaly met with an Equal Employment Opportunity
(“EEO”) counselor and filed an informal EEO
complaint with the Department of State's Office of Civil
Rights. On December 20, 2011, Dr. Coulibaly filed
a formal EEO complaint with the Office of Civil Rights, in
which he alleged that FSI management had discriminated
against him on the basis of race, color, and national origin
and had committed “reprisal” against him.
See Compl. ¶ 9; Formal Compl. of
Discrimination, ROI at 62-63, ECF No. 26-1. The resulting
EEO investigation generated affidavits from many of Dr.
Coulibaly's former colleagues, as well as the lengthy
report of investigation that forms much of the record in this
Performance Appraisal Report (December 27, 2011)
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. Performance
Appraisal Report (“PAR”) by Laura Fyfe, ROI at
790, ECF No. 26-7.
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, 5:53 PM), ROI at 788-89, ECF No. 26-7. 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 (Dec. 28, 2011, 3:10 PM), ROI at
795-96, ECF No. 26-7. 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), ROI at 795, ECF No. 26-7.
Event for FSI's French Language and Culture Instructors
(December 29, 2011)
next day, on December 29, 2011, Dr. Coulibaly attended an
event for FSI's French Language and Culture instructors.
See Casteuble Mem. (Jan. 24, 2012), ROI at 815, ECF
No. 26-7; see also Cazeau Aff., ROI at 1339-40, ECF
No. 26-12. The parties dispute 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), ROI at 815, ECF No. 26-7; see also Mem. Supp.
Defs.' Cross-Mot. Summ. J. & Opp'n Pl.'s Mot.
Summ. J. (“ Defs.' Mem.”) at 8-9, ECF No. 27
(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), ROI at 815, ECF No.
Coulibaly, however, adopts the view of his colleague, Elder
Cazeau, who also attended the meeting. See Pl.'s
Reply at 7-8, ECF No. 32. Mr. Cazeau recalls that the meeting
was merely a “section meeting that had been organized
to discuss lesson plans.” Cazeau Aff., ROI at 1339, ECF
No. 26-12. 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
January 2012, LTS Casteuble replaced LTS Fyfe as Dr.
Coulibaly's supervisor. See Email from Tiemoko
Coulibaly (Jan. 27, 2012, 9:37 AM), ROI at 813-14, ECF No.
26-7 (indicating that LTS Casteuble's first day as Dr.
Coulibaly's new supervisor was on January 24, 2012);
Casteuble Aff., ROI at 1228, ECF No. 26-11 (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.” Email from Philippe Casteuble
(Jan. 23, 2012, 9:55 AM), ROI at 814, ECF No.
26-7. 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, 9:37 AM), ROI at 813,
ECF No. 26-7. Dr. Coulibaly was further surprised by the fact
that a human resources representative was present for the
same day, LTS Casteuble emailed Dr. Coulibaly and thanked him
for submitting his weekly syllabus. See Email from
Philippe Casteuble (Jan. 24, 2012, 12:42 PM), ROI at 829-30,
ECF No. 26-8. 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 proficiency level”).
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 (Feb. 2, 2012, 2:14 PM), ROI at 820, ECF No. 26-7.
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, 4:57 PM), ROI at
819, ECF No. 26-7. 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 (Feb. 6,
2012, 8:29 AM), ROI at 829, ECF No. 26-8 (“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), ROI at 827-28 (“[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), ROI at 839-41, ECF No. 26-8. 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 Larua
Fyfe did [for] the last 6 months.”).
later that week, Dr. Coulibaly provided his answers to LTS
Casteuble's January 24, 2012 questions. See
Email from Tiemoko Coulibaly (Feb. 10, 2012, 6:45 PM), ROI at
902-04, ECF No. 26-8. 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
next day, Dr. Coulibaly received an email from LTS Fyfe
stating that Dr. Coulibaly had not submitted his required
weekly syllabus. See Email from Laura Fyfe (Feb. 14,
2012, 8:59 AM), ROI at 900, ECF No. 26-8 (noting that the
recipients of the email had not submitted weekly syllabi, but
without making the recipients known). In response, Dr.
Coulibaly stated that, because he had received LTS
Casteuble's feedback too late the day before, he had been
unable to submit his weekly syllabus by the
deadline. Dr. Coulibaly also reiterated that the
syllabus was “just a pretext” for LTS Fyfe,
Director Blake, and LTS Casteuble to “harass, ”
to “discriminate” against, and to
“retaliate against” him. Email from Tiemoko
Coulibaly (Feb. 14, 2012, 10:49 AM), ROI 898-900, ECF No.
26-8. Later, LTS Casteuble explained to Dr. Coulibaly that
LTS Fyfe's message was “a mass e-mail, ”
intended to be a reminder and directed at several employees.
See Email from Philippe Casteuble to Tiemoko
Coulibaly (Feb. 14, 2012), ROI at 842-43, ECF No. 26-8.
Absence from Work (February 2012-March 2012)
this time, Dr. Coulibaly received treatment for his physical
and mental health as a result of his perceived
“retaliation, harassment, [and] hostile work
environment.” See Compl. ¶¶ 11-14;
Letter from Willie Hamlin, M.D., to Cathy Russell (Mar. 10,
2012), Compl. Ex., ECF No. 1-1, at 1 (reporting that Dr.
Coulibaly “initiated treatment for severe stress”
prior to February 27, 2012). Dr. Coulibaly states that, on
February 15, 2012, his primary care physician instructed him
not to return to work and referred him to a psychiatrist.
Compl. ¶¶ 12-13. Accordingly, beginning on February
15, 2012, Dr. Coulibaly did not go to work. See Id.
¶ 12; Defs.' Stmt. ¶ 62; see also
Email from Philippe Casteuble (Feb. 15, 2012, 7:49 AM), ROI
at 894, ECF No. 26-8.
March 1, 2012, Director Blake informed Dr. Coulibaly of his
remaining allowance of sick leave and annual leave:
“approximately 48 hours of sick leave, ” if Dr.
Coulibaly were to return to work on March 2, 2012, and
“about 96 hours of annual leave.” Email from
Debra Blake (Mar. 1, 2012, 12:19 PM), ROI at 892, ECF No.
26-8. FSI Human Resources Specialist Brian Springer also
wrote to Dr. Coulibaly to explain the procedures for
requesting advanced sick leave, the only type of sick leave
available if Dr. Coulibaly were to exhaust his remaining sick
leave hours. See Email from Brian Springer (Mar. 2,
2012, 9:26 AM), ROI at 890-91, ECF No. 26-8; see
also Springer Aff., ROI at 971, ECF No. 26-9 (noting HR
Specialist Springer's position title at FSI). In
response, Dr. Coulibaly took issue with the calculations: he
claimed that, because the alleged “hostile work
environment, the EEO discrimination and retaliation
complaint[, ] and [his] health issues” were “all
connected, ” “any fair calculation” of his
hours of sick leave and annual leave should take into account
the context surrounding his sickness. Email from Tiemoko
Coulibaly (Mar. 1, 2012, 1:46 PM), ROI at 891-92, ECF No.
26-8. Dr. Coulibaly also told Mr. Springer that he believed
that it was “unfair” that he had lost sick and
annual leave, given that he was “not responsible”
for his health issues, which he felt were “direct
consequences of deliberate acts of retaliation and
discrimination” by his managers. Email from Tiemoko
Coulibaly (Mar. 2, 2012, 11:49 AM), ROI at 888, ECF No. 26-8.
days later, LTS Casteuble emailed Dr. Coulibaly to find out
when he planned to return to work and to clarify what type of
leave Dr. Coulibaly intended to use while he was absent.
See Email from Philippe Casteuble (Mar. 5, 2012,
4:04 PM), ROI at 887, ECF No. 26-8. Dr. Coulibaly replied
that, because his absence stemmed from being sick, he would
“of course use only sick
leave.” Email from Tiemoko Coulibaly (Mar. 5, 2012,
5:50 PM), ROI at 886, ECF No. 26-8 (emphasis in original).
Dr. Coulibaly also asserted that he should not “have to
lose any day of sick leave, ” because, in his view, his
illness was “the direct consequence of . . . several
months of illegal discrimination and retaliation”
against him. Id.
next day, LTS Casteuble again wrote to Dr. Coulibaly to
inform him that Director Blake had been mistaken about Dr.
Coulibaly's remaining sick and annual leave allowances;
Dr. Coulibaly had in fact “ran completely out of sick
leave” on February 23, 2012, and he had only “68
hours of annual leave remaining” on February 24, 2012,
which would cover Dr. Coulibaly only through March 7, 2012.
See Email from Philippe Casteuble (Mar. 6, 2012,
4:56 PM), ROI at 885, ECF No. 26-8. Accordingly, LTS
Casteuble asked Dr. Coulibaly to immediately decide whether
he would apply annual leave or leave without pay
(“LWOP”) to cover his continued absence.
Id. In response, Dr. Coulibaly repeatedly emphasized
that LTS Casteuble could not “ignore” Dr.
Coulibaly's discrimination and retaliation allegations
and accordingly should “focus on the law, ”
instead of trying to enforce the “administrative rules
of [the] State Department.” Email from Tiemoko
Coulibaly to Philippe Casteuble (Mar. 6, 2012, 6:37 PM), ROI
at 882-84, ECF No. 26-8. Dr. Coulibaly stated, therefore,
that he was unable to respond to LTS Casteuble's request:
“I cannot answer your email right now since I believe
it is retaliation and also I don't feel very well . . . .
The point is I am sick because of your retaliation, [and] I
cannot go to work right now.” Id. at 883.
next day, HR Specialist Springer responded to Dr.
Coulibaly's message by commenting that “there are
Federal laws that govern the official Time and Attendance of
ALL Federal Employees.” Email from Brian Springer (Mar.
7, 2012, 11:00 AM), ROI at 882, ECF No. 26-8 (capitalization
in original). HR Specialist Springer followed with a reminder
that, if Dr. Coulibaly did not provide a leave type for his
ongoing absence, he would be considered absent without
official leave (“AWOL”). See Id. Dr.
Coulibaly responded by stating that, “[o]f course, [he
would] follow all federal laws for official Time and
Attendance, ” and accordingly, he wanted “to
apply for advanced leave.” Email from Tiemoko Coulibaly
(Mar. 7, 2012, 1:10 PM), ROI at 881, ECF No. 26-8.
Friday, March 9, 2012, HR Specialist Springer reminded Dr.
Coulibaly that, because he had not yet submitted a request
for advanced leave, he was scheduled to come to work on
Monday, March 12, 2012. Email from Brian Springer (Mar. 9,
2012, 11:48 AM), ROI at 874, ECF No. 26-8. In his response,
Dr. Coulibaly expressed that he was “very surprised to
hear” this: “It was very clear in our messages
[over the] last few days that I cannot and I won't come
to work on Monday since I am requesting Leave without pay and
Advance [sick] leave because of health issues.” Email
from Tiemoko Coulibaly (Mar. 9, 2012, 2:13 PM), ROI at
873-74, ECF No. 26-8. Dr. Coulibaly also said that he had
“faxed a document” to LTS Casteuble the day
before regarding leave, and that LTS Casteuble had
“confirmed by email that he [had] received it.”
Id. HR Specialist Springer then explained that the
leave slip that Dr. Coulibaly had submitted the day before
covered only his absence “from February 13 through . .
. March 9, 2012, ” and so Dr. Coulibaly would
“need to submit another [leave] request or return to
work on Monday.” Email from Brian Springer (Mar. 9,
2012, 2:56 PM), ROI at 873, ECF No. 26-8. Dr. Coulibaly,
however, did not submit an additional leave request until
March 13, 2012. See Email from Tiemoko Coulibaly
(Mar. 13, 2012, 2:14 PM), ROI at 872-73, ECF No. 26-8
(submitting a request for advanced sick leave and for
receiving Dr. Coulibaly's request for advanced sick leave
and LWOP, HR Specialist Springer did not immediately process
Dr. Coulibaly's request. See Email from Brian
Springer to Tiemoko Coulibaly (Mar. 13, 2012, 3:44 PM), ROI
at 870-72, ECF No. 26-8. Instead, he told Dr. Coulibaly to
“please follow [HR Specialist Springer's]
instructions to request Advanced Sick leave OR LWOP, ”
and noted that Dr. Coulibaly's doctor's note, which
Dr. Coulibaly had submitted with his request,
“include[d] some comments that shouldn't be
there.” Id. at 870 (capitalization in
original). Dr. Coulibaly, however, refused to do so, because
he felt that the doctor's note included all the required
information. See Email from Tiemoko Coulibaly (Mar.
13, 2012, 4:59 PM), ROI at 869-70, ECF No. 26-8 (noting that
“the diagnosis . . . and the time [he would] be
incapacitated . . . are in the letter”).
Coulibaly reports that he returned to work on March 26, 2012,
following his psychiatrist's instructions. See
Compl. ¶¶ 14, 17; see also Request for
Advanced Sick Leave and Leave Without Pay (Mar. 26, 2012),
ROI at 1326, ECF No. 26-12 (“I returned to work today
March 26, 2012.”). Upon his return, he also wrote a
letter to Cathy Russell, a higher-level FSI manager, in which
he requested “Advanced Sick Leave for 80 hours”
for the period between March 12, 2012 and March 23, 2012.
See Compl. ¶ 17; Request for Advanced Sick
Leave and Leave Without Pay, ROI at 1326, ECF No. 26-12.
Defendants acknowledge that Dr. Coulibaly's managers
ultimately approved Dr. Coulibaly's leave for that
period, despite HR Specialist Springer's initial refusal
to accept Dr. Coulibaly's doctor's
days later, Dr. Coulibaly submitted another leave request,
this time with LTS Casteuble, for eight hours of advanced
sick leave on March 29, 2012. After receiving the request
late in the day on March 28, 2012, LTS Casteuble emailed Dr.
Coulibaly to tell him that LTS Casteuble lacked the authority
to approve the leave request and Dr. Coulibaly had to request
advanced sick leave with a different managing office.
See Email from Philippe Casteuble (Mar. 28, 2012,
4:17 PM), ROI at 1324. LTS Casteuble informed Dr. Coulibaly
that LTS Casteuble would accordingly enter the leave as
“leave without pay pending . . . approval” from
the other managing office. Id. Dr. Coulibaly then
asked LTS Casteuble to “[p]lease enter the 8 hours as
leave without pay pending . . . approval, ” and he
noted that he would give LTS Casteuble “the memo”
on the day after he returned. Email from Tiemoko Coulibaly
(Mar. 28, 2012, 4:29 PM), ROI at 866, ECF No. 26-8. By
“the memo, ” Dr. Coulibaly later clarified that
he intended to “present a new complete request”
for leave. See Email from Tiemoko Coulibaly (Mar.
29, 2012, 3:40 PM), ROI at 867, ECF No. 26-8.
the day for which Dr. Coulibaly requested leave (March 29,
2012), Dr. Coulibaly reports that he received a call
“at noon” from LTS Casteuble, who told Dr.
Coulibaly that the managing office had denied the request for
advanced sick leave. Id. In a message to LTS
Casteuble, Dr. Coulibaly noted that LTS Casteuble had
submitted the advanced sick leave request to FSI management
against Dr. Coulibaly's wishes: “I answered by
email to you [and said] that I will submit . . . the request
[again] on Friday with the appropriate memo and information.
So I don't understand why you ...