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Coulibaly v. Tillerson

United States District Court, District of Columbia

October 5, 2017

TIEMOKO COULIBALY, Plaintiff,
v.
REX TILLERSON, [1] U.S. Secretary of State, et al, Defendants.

          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, 58

          RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiff 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[2] 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."[3] 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.

         II. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

         The 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.

         A. Factual Background

         Dr. 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.

         According 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.

         As 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.

         Dr. 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.[4] 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.

         Discord 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).

         Beginning 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.

         B. Procedural Background

         The 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 ...


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