United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING DEFENDANTS' MOTION TO
DISMISS COUNT 5 AND DENYING PLAINTIFF'S MOTION TO
RECONSIDER RULINGS ON COUNTS 18 AND 19 RE DOCUMENT NO.: 55,
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 eleven other current or
former federal employees alleging, among other things,
violations of federal statutory law and the First Amendment.
In a prior Memorandum Opinion, this Court dismissed or
granted summary judgment to Defendants on all but four counts
asserted in Dr. Coulibaly's twenty-two count third
amended complaint. See Coulibaly v. Kerry, 213
F.Supp.3d 93, 104-05 (D.D.C. 2016); Sept. 30, 2016 Order
(characterizing Counts 5, 6, 13, and 16 as still pending
against at least one defendant), ECF No. 46; see
also Pl.'s Third Am. Compl, ("Compl."),
ECF No. 28. Defendants now move the Court to dismiss Count 5
of the complaint as time barred. Defs.' Mot. Dismiss
Count Five of the Third Am. Compl. ("Mot. Dismiss Count
Five"), ECF No. 55. And Dr. Coulibaly requests that this
Court reconsider its dismissal of Count 18 and its entry of
summary judgment for Defendants on the second of two counts
labelled "Count 19." Pl.'s Resp. Defs.' Mot.
Dismiss ("Pl.'s Resp."), ECF No. 58. The Court
grants Defendants' motion to dismiss Count 5, and denies
Plaintiffs motion for reconsideration.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Court assumes familiarity with its prior Memorandum Opinion,
which describes the facts of this case in detail. See
Coulibaly, 213 F.Supp.3d at 105-21. This brief summary
recounts only facts and procedural history relevant to the
motions currently before the Court.
Coulibaly, an African American from the Ivory Coast, joined
the Department of State's Foreign Service Institute
("FSI") as a French instructor in 1999. Compl.
¶ 19. Initially, he worked pursuant to a contract that
was renewable in one-year increments. See Id.
¶¶ 74-75; Defs.' Statement of Material Facts as
to Which There is No Genuine Dispute ("Defs.'
Facts") ¶¶ 1-3, ECF No. 30. He recounts
"extreme anxiety and constant fear of losing his
job" due to, among other things, his relative lack of
job security as compared to direct-hire personnel. Compl.
¶ 109; see also Id. ¶¶ 76, 160.
to Dr. Coulibaly, by "2007, based on [his] seniority, it
was his turn to become direct-hire." Id. ¶
50. He asserts that at some point on or before June 15, 2007,
FSI's Associate Dean James North asked him if he would
accept a direct-hire position. See Id. ¶¶
50-51. Dr. Coulibaly responded in the affirmative and
"expecte[d] his appointment by Associate Dean James
North sometime soon after this conversation."
Id. ¶ 51. But, Dr. Coulibaly contends,
"[w]hile [he] was waiting for his appointment, "
id. ¶ 54, other members of FSI's upper
management convinced Associate Dean North not to hire Dr.
Coulibaly because of his "political speech in favor of
justice and democracy . . . about his country of
origin." See Id. ¶¶ 54, 57, 62.
evidence, Dr. Coulibaly describes conversations (which
apparently occurred in 2007) with Mr. Soloman Atayi-then head
of the French section at FSI and Dr. Coulibaly's
supervisor-and with Mr. Atayi's supervisor
"Micha." See Id. ¶¶ 54, 57-63,
66-69. In one conversation, Mr. Atayi purportedly scolded Dr.
Coulibaly for giving media interviews regarding political
events happening in the Ivory Coast and told Dr. Coulibaly
that even though he was next in line to become a direct-hire
employee, hiring him was "not a good idea" because
of political articles he had written "against the
Ivorian government." Id. ¶¶ 54,
65-66. Mr. Atayi also supposedly stated that appointing Dr.
Coulibaly as a direct-hire employee "could create
political problems" between the Department of State and
the Ivory Coast. Id. ¶ 54. "[D]uring that
same period, " Micha allegedly told Dr. Coulibaly that
"she also believed it [was] not a good idea to hire him
as [a direct-hire] employee because [he] was a political
asylee" and "his writing could create some
political problems." Id. ¶ 57-59.
Coulibaly also cites as evidence a position description for a
direct-hire French language teaching position, which was
signed by both Associate Dean North and an FSI human
resources officer and dated June 15, 2007. See Id.
¶¶ 41-43; Position Description, Defs.' Facts
Ex. F, ECF No. 30-6. At some point in 2007 or thereafter, Dr.
Coulibaly's name was added to the document. See
Position Description, Defs.' Facts Ex. F, ECF No. 30-6.
Dr. Coulibaly emphasizes that he did not discover the signed
position description until April 22, 2013, when the
Department provided it to the Merit Systems Protection Board
in the course of an investigation into Dr. Coulibaly's
claims of wrongdoing against members of FSF supper
management. Compl. ¶ 39; Pl.'s Resp. at 17. He
asserts that by the time he was finally appointed to a
direct-hire role in June 2011, he had been bypassed for
"several" positions. See Compl. ¶
125. "For example, " he cites a direct-hire
position offered to a purportedly less-experienced instructor
named Frederic Hegbe (apparently in 2007) and a July 2009
position to which management "refus[ed]" to appoint
Dr. Coulibaly though he was "the best candidate."
See Id. ¶¶ 55, 125.
between Dr. Coulibaly and his supervisors at FSI did not
subside when he became a direct-hire employee. The record
reveals a conflict-filled relationship between Dr. Coulibaly
and Language Training Supervisor ("LTS") Laura
Fyfe, Dr. Coulibaly's first-line supervisor from June 19,
2011 until late January 2012. See Fyfe Affi
¶¶ Q1, Q3-Q6, Q46, Defs.' Facts Ex. H, ECF No.
30-8. After Dr. Coulibaly's repeated internal complaints
about LTS Fyfe and several requests for a new supervisor, FSI
eventually moved him to LTS Phillipe Casteuble's charge
in January 2012. See Email from Tiemoko Coulibaly
(Jan. 27, 2012), EEO Investigation Report at 813-14, ECF No.
36-4. But Dr. Coulibaly's relationship with LTS Casteuble
was no less strained. According to the record, on December
29, 2011, Dr. Coulibaly quarreled with LTS Casteuble at an
event for FSI's French Language and Culture instructors.
See Compl. ¶¶ 194-95; Casteuble Mem. (Jan.
24, 2012), EEO Investigation Report at 815, ECF 36-4. The
parties disagree about the purpose of the meeting and the
nature of Dr. Couliably's actions during the meeting.
Briefly stated, Dr. Couliably contends that he was silenced
when he attempted "to speak against global and systemic
unlawful discrimination, retaliation and violation[s] of the
No Fear Act." Compl. ¶ 195. Defendants accuse Dr.
Couliably of "inappropriate conduct" and comments
that "were off topic" during the meeting. Casteuble
Mem. (Jan. 24, 2012), EEO Investigation Report at 815. LTS
Casteuble later reprimanded Dr. Coulibaly for his conduct.
See Email from Tiemoko Coulibaly (Jan. 27, 2012),
EEO Investigation Report at 813; see also Casteuble
Mem. (Jan. 24, 2012), EEO Investigation Report at 815, ECF
No. 36-4 (reproducing LTS Casteuble's memorandum).
in mid-February 2012, Dr. Coulibaly took a leave of absence
to attend to medical issues. See Compl. ¶ 175
("[T]he Agency destroyed Plaintiffs health by increasing
retaliation forcing him to take leave for six weeks for
psychiatric treatment."). While on leave, Dr. Coulibaly
contacted Equal Employment Opportunity ("EEO")
manager Eloisa Done by email to explain that he had
"serious health issues" as a result of "bad
experiences" at work. Email from Tiemoko Coulibaly to
Eloisa Done (Mar. 21, 2012), Pl.'s Resp. at 26, ECF No.
58. He expressed that "[a] change of supervisor when I
return to work next week should help to avoid further illegal
retaliations which would damage my fragile health
condition." Id., Pl.'s Resp. at 27, ECF,
No. 58. He also attached a letter from physician Dr. Willie
Hamlin which noted "[i]t is not recommended for Mr.
Coulibaly to return to the same hostile work environment
and/or Supervisor." Letter from Willie Hamlin to
Catherine Russell at2, Pl.'s Resp. at40, ECF No. 58. FSI
later terminated Dr. Coulibaly's employment 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.
motions currently before the Court concern Counts 5, 18, and
19 of Plaintiff s third amended complaint. This Court's
September 30, 2016 Opinion "construe[d] Count 5 of Dr.
Coulibaly's complaint as alleging that FSI did not hire
him in 2007 because of his protected First Amendment
speech-namely, communicating with the media about the Ivorian
government." Coulibaly, 213 F.Supp.3d at 154.
The Court dismissed Count 5 as asserted against the United
States. Id. at 155. But, because the other
defendants had not been properly served with the complaint,
the Court denied Defendants' motion to dismiss with
respect to them. Id ...