United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
Dolores Barot brought this action against the Embassy of the
Republic of Zambia alleging that defendant discriminated
against her in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. when it
paid her less than male employees, and that it discriminated
and retaliated against her in violation of Title VII and the
Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. ("ADEA") when it terminated her
employment. Compl. [Dkt. # 1] at 4. Plaintiff later amended
her complaint to include an allegation that defendant
violated the District of Columbia Wage Payment and Collection
Law, D.C. Code § 32-1301, et seq.
("DCWPCL"), when it failed to pay her wages she was
owed after her termination. 1st Am. Compl. [Dkt. # 17-1]
¶¶ 63-65; 2d Am. Compl. [Dkt. # 60] ¶¶
87-90. On September 8, 2017, the Court granted
defendant's cross-motion for partial summary judgment on
the DCWPCL count (Count IV), concluding that the claim was
barred by the statute of limitations.
before the Court is defendant's motion for summary
judgment on Counts I, II, and III. Def'sMot. for Summ. J.
[Dkt. # 80] ("Def'sMot."); Mem. in Supp. of
Def'sMot. [Dkt. # 80- 1] ("Def.'s
Mem.")- While it appears that plaintiffs
termination was hasty, and one could take issue with the
quality of the managerial decision making involved, plaintiff
has not come forward with evidence that would enable a
reasonable jury to conclude that she was terminated because
of her age, or in retaliation for complaining about gender
discrimination. So the Court will grant defendant's
motion for summary judgment on the remaining counts.
began working for defendant as a secretary in January 1998.
Def's SOF ¶ 1; Pl's SOF ¶ 1. Her base
salary was $1, 300.00 per month, and she was eligible for an
annual salary increase of $600.00 if the Embassy was
satisfied with her performance during the year. Def's SOF
¶ 21; Pl's SOF ¶ 21. As of the time of her
termination, plaintiffs monthly salary was $3, 150.00.
Def's SOF ¶26; Pl's SOF ¶26.
her employment, plaintiffs supervisor was either the
Embassy's Second Secretary (Accounts) - originally Paul
Mulenga, and then Frank Mbewe - or its First Secretary
(Accounts) - Mbewe. Def's SOF ¶ 2; Pl's SOF
¶ 2. Over time, as plaintiff saw it, she took on
additional duties she described as "accounting duties,
" Pl's SOF ¶ 27; Ex. 3 to Def's Mot. [Dkt.
# 80-3] at 7, 16, and, she wrote a memorandum to the
Ambassador on September 7, 2009 requesting an increase in her
salary. Def's SOF ¶ 27; Pl's SOF ¶ 27; Ex.
18 to Def's Mot.[Dkt. # 80-5] ("Sept. 7 Barot
Memo"). She also provided copies of the memorandum to
Mbewe; Felix C. Mbula, the First Secretary (Political &
Administrative); and the Embassy's Minister Counsellor,
Alfred Chioza. See Sept. 7 Barot Memo; Ex. 2 to
Def.'s Mot. [Dkt. # 80-3] at 104:9-14.
memo, plaintiff advocated for a salary increase commensurate
with her "extra work load, " and she claimed that
four other individuals had been treated in that manner.
Def.'s SOF ¶ 27; Pl's SOF ¶ 27; see
also Sept. 7 Barot Memo. Plaintiffs memo had this to say
about the four others:
Back in February, 2000, when Glen Jervis, Receptionist took
the position of Secretary, her Salary was commensurately
increased from $1, 260.00 to $1, 460.00, a monthly increase
of $200.00 ($2, 400.00/year).
In May 2003 . . . Office Orderly/Janitor, Cresencio
Lawigan's monthly salary was raised from $1, 000 to $1,
200.00; an increase of $200.00 a month ($2, 400.00/year),
justifying that he has to do extra work in the Chancery and
the Ambassador's Residence.
In 2007, when the Second Secretary (Accts.) and Third
Secretary (PA) were promoted to First Secretary (Accts) and
Second Secretary (PA), their Overseas Allowances were also
Sept. 7 Barot Memo; see also Def.'s SOF ¶
28; Pl's SOF ¶ 28 (clarifying that Glen Jervis is
female and Crescendo Lawigan is male). Plaintiff also
maintained that she deserved the increase because the fact
that she had created a computer template to substitute for
paper forms had saved the Embassy money:
I have been doing my job exceedingly, and the Embassy have
[sic] been saving a lot, which savings is more than
the 10% of my one month's salary. These savings are from
purchase of Payment Vouchers and Backing Sheets because prior
to my hiring, all these forms are bought from Printing
Companies which the Embassy is no longer doing from then on.
Sept. 7 Ban* Memo.
September 9, 2009, plaintiff met with Mbewe and Mbula to
discuss her requested salary increase. Def.'s SOF ¶
31; Pl's SOF ¶ 31. Plaintiffs request was denied,
and Mbewe, Mbula, and plaintiff agreed that she would return
to her ordinary secretarial duties instead. See
Def.'s SOF ¶31; Pl's SOF ¶ 31; BarotDep. at
106:12-16; id at 107:19-108:9.
she left for the day, though, plaintiff prepared and
delivered another memorandum to Mbewe and Mbula. She informed
them that there was a shortage of the hard copy payment
voucher forms that she would now need in light of her return
to "secretary only" duties. Def.'s SOF
¶¶ 32-33; Pl's SOF ¶¶ 32-33;
see Ex. 20 to Def.'s Mot. [Dkt. # 80-5]
("Sept. 9 Barot Memo"); Barot Dep. at 122:22-123:6
(explaining that she would go back to using the paper form
because that is what she did "when [she] was first hired
as being [a] secretary"). Plaintiff had created and then
continuously used the computerized version of the form during
the time period that led up to the meeting. But after the
meeting, she gave a memorandum to her supervisors advising
them that they would need to order the paper forms again,
repeating her point that she had been saving the Embassy
money. See, e.g., Barot Dep. at
115:20-116:6 ("On the 9th after our meeting, it has been
agreed that I will be going back to being secretary. So
because when I was a secretary I just filled out those forms,
the payment vouchers, the backing sheet, and the forms. So -
and the payment vouchers that I had was already running out,
the forms that I was using before when I was a secretary.
They still had the form there, so I requested for purchase of
those payment vouchers."); id. at 123:18-124:3
("Q. Why did it have to go back to that way instead of
you continuing to use the form that was on your computer that
would show the numbers on it?" A. "So I just wanted
them to know that the one that I did was very useful. They
were saving, because I was -1 have to point them to they were
saving because of what I did. So I had to be compensated for
what I did."); id. at 156:17-157:17
("Because I want them to know that that they are saving
a lot by using what I have done and what I had formatted in
my computer. They are saving a lot"); see also
Sept. 9 Barot Memo.
to defendant, Mbewe did not have access to the computerized
forms on his computer, but he could access them on plaintiffs
computer. Def.'s SOF ¶ 34. He logged on to
plaintiffs computer after she left work on September 9, but
he was unable to find the form, and he concluded that the
payment voucher template had been deleted. Id. He
then informed Mbula that plaintiff had deleted the template.
Id. & n.52; see Ex. 21 to Def.'s
Mot. [Dkt. # 80-5] ("Brief on the Case of Dolores
Barot") at 2. The "mission administration"
made a decision that night to place plaintiff on
administrative leave immediately pending the arrival of the
Ambassador. See BriefontheCaseof DoloresBarotat2.
next morning, September 10, 2009, Mbula entered plaintiffs
office. Def.'s SOF ¶ 36; Pl's SOF ¶ 36.
After he asked plaintiff whether she was a member of a labor
union, to which she responded "no, " he presented
her with a letter dated the same day signed by Chioza,
placing her on indefinite administrative leave. Def.'s
SOF ¶ 36; Pl's SOF ¶ 36. Mbula asked her to
gather her things, and he escorted her out of the office.
Def.'s SOF ¶ 36; Pl's SOF ¶
September 10, 2009 letter stated:
Further to the meeting between First Secretary (Accounts),
First Secretary (Political and Administration) and yourself,
regarding matters pertaining to your duties, and after
serious consideration of the circumstances surrounding your
actions thereafter, it has been decided to place you on
indefinite administrative leave with immediate effect pending
review of your case.
During your administrative leave, you will receive 50% of
your salary. Any further decisions regarding your employment
with the Embassy will be made after the outcome of the review
of your case.
Ex. 22 to Def.'s Mot. [Dkt. # 80-5] ("Administrative
In a letter dated November 5, 2009, defendant informed
plaintiff that she had been terminated. See Ex. 24
to Def.'s Mot. [Dkt. # 80-5] ("Termination
Letter"). That letter stated in relevant part:
I write to inform you that following the review of the
circumstances that led to your being placed on administrative
leave on 10th September, 2009, the Embassy has
decided that your services are no longer required by the
Government of the Republic of Zambia.
Your employment contract has therefore been terminated with
effect from 31rt October 2009. You will be paid
one month's salary in lieu of notice.
Id. Plaintiff was 62 years old when she was
terminated, and she was the oldest locally engaged staff
member employed at the Embassy. Def.'s SOF ¶ 4;
see Pl's SOF ¶ 4. On approximately November
23, 2009, the Embassy hired Nischel Pedapudi, a male who was
younger than plaintiff, as her replacement. See
Def.'s SOF ¶ 46; Pl's SOF ¶ 46.
organization of the Embassy is relevant to its status as an
employer that could be liable under Title VII and the ADEA.
The Ambassador, the Defense Attache, and Embassy personnel,
which includes both diplomatic personnel and locally engaged
staff, were posted to the Embassy located in Washington, D.C.
See Def.'s SOF ¶¶ 6, 11; Pl's SOF
¶¶ 6, 11.
the relevant time period prior to plaintiffs termination, the
Embassy had no more than fourteen locally engaged staff, the
Defense Attache had two locally engaged staff, Def.'s SOF
¶ 6; Pl's SOF ¶ 6, and there were ten
diplomatic personnel (including the Defense Attache) posted
to the Embassy in Washington, D.C. Def.'s SOF ¶ 11;
Pl's SOF ¶11.
diplomatic personnel, except for the Defense Attache were
hired, fired, and disciplined by Zambia's Ministry or
Minster of Foreign Affairs, and their work assignments were
assigned and monitored by the Minister of Foreign Affairs as
well. Def.'s SOF ¶¶ 12-13; Pl's SOF
¶¶ 12-13. Diplomatic personnel were paid out of a
budget established by the Minister of Foreign Affairs, and
the Minister set their salaries, specified their methods of
work, and regulated payroll practices. Def.'s SOF
¶¶ 13-14; Pl's SOF ¶¶ 13-14.
of the Embassy's locally engaged staff were hired and
fired by the Ambassador. Def.'s SOF ¶ 7; Pl's
SOF ¶ 7. The diplomatic heads of departments exercised
day-to-day supervision over the staff: promulgating work
rules, maintaining employment records, distributing work
assignments, and handling disciplinary matters. Def.'s
SOF ¶ 8; Pl's SOF ¶ 8. The diplomat generally
in charge of locally engaged staff was the First Secretary
(Administration). Def.'s SOF ¶8; Pl's SOF
Embassy proposed terms of employment for its locally engaged
staff, and it exercised authority over support staff
personnel matters. Def.'s SOF ¶ 9; see
Pl's SOF ¶ 9. But staff salary had to be approved by
Zambia's Minister of Foreign Affairs. Def.'s SOF
¶ 9; see Pl's SOF ¶ 9.
Defense Attache was hired, disciplined, and fired by
Zambia's Ministry of Defense. Def.'s SOF ¶¶
12-14; Pl's SOF ¶¶ 12-14. The Ministry of
Defense assigned and oversaw the work performed by the
Defense Attache. Def.'s SOF ¶¶ 12-14; Pl's
SOF ¶¶ 12-14. Within the office of the Defense
Attache, the Defense Attache had authority - with notice to
the Minister of Defense - to hire and fire his own locally
engaged staff, which consisted of a driver and a secretary.
Def.'s SOF ¶ 10; see Pl's SOF ¶
10. The Defense Attache also controlled his locally engaged
staff members' work assignments and employment records,
monitored their performance, disciplined them, and, in
conjunction with the Minister of Defense, set their salaries.
Def.'s SOF ¶ 10; see Pl's SOF ¶
10. The Defense Attache's locally engaged staff was paid
out of the Defense Attache's budget, Def.'s SOF
¶ 10; see Pl's SOF ¶ 10, and the
Defense Attache's compensation and conditions of service
were governed by rules established by the Ministry of Foreign
Affairs. Def.'s SOF ¶ 14; Pl's SOF ¶ 14.
Embassy's locally engaged staff, including plaintiff,
could be called upon to assist the Defense Attache with tasks
such as typing memoranda and checks. Def.'s SOF ¶
10; see Pl's SOF¶10.
20, 2010, plaintiff filed a charge of sex and age
discrimination with the United States Equal Employment
Opportunity Commission ("EEOC"). Pl's Counter
SOF ¶ 26; Def.'s Resp. SOF ¶ 26; see
Ex. 26 to Pl's Opp. [Dkt. # 86-2]. The EEOC issued a
decision on September 28, 2012, concluding that there was
reasonable cause to believe that the Embassy discriminated
against plaintiff based on her sex and her age when it
discharged her, in violation of Title VII and the ADEA, and
that it retaliated against her in violation of the ADEA.
Pl's Counter SOF ¶ 29; Def.'s Resp. SOF ¶
29; see Ex. 27 to Pl's Opp. [Dkt. # 86-3]
("EEOC Determination"). However, the EEOC concluded
that there was insufficient evidence to establish that the
Embassy retaliated against plaintiff in violation of Title
VII. See EEOC Determination.
March 18, 2013,  plaintiff filed her initial complaint,
alleging violations of Title VII and the ADEA. Compl.
Plaintiff filed her first amended complaint on November 22,
2013, in which she added a DCWPCL claim. See 1st Am.
Compl. ¶¶ 63-65.
April 11, 2014, the Court dismissed plaintiffs amended
complaint for lack of personal jurisdiction based on
plaintiffs failure to perfect service on defendant in
accordance with the Foreign Sovereign Immunities Act
("FSIA"). Barot v. Embassy of the Republic of
Zambia, 11 F.Supp.3d 24, 32 (D.D.C. 2014). The Court
denied plaintiffs motion for reconsideration on June 2, 2014.
Barot v. Embassy of the Republic of Zambia, 11
F.Supp.3d 33, 36 (D.D.C. 2014).
appealed the dismissal of her amended complaint, and the
Court of Appeals reversed and remanded the case to
"afford [plaintiff] ... the opportunity to effect
service pursuant to 28 U.S.C § 1608(a)(3)."
Barot v. Embassy of the Republic of Zambia, 785 F.3d
26, 29-30 (D.C. Cir. 2015); see also Mandate of
United States Court of Appeals [Dkt. # 41].
plaintiff perfected service, see Return of Service
Aff [Dkt. # 52], defendant moved to dismiss the amended
complaint on the grounds that it failed to state a claim upon
which relief could be granted. Def.'s Mem. of Law in
Supp. of Def.'s Mot. to Dismiss [Dkt. # 53-1]. In
response, plaintiff filed a motion for leave to file a second
amended complaint pursuant to Federal Rule of Civil Procedure
15, Mot. for Leave to File 2d Am. Compl. [Dkt. # 54], which
the Court granted. Min. Order (Jan. 19, 2016).
filed a second amended complaint on January 19, 2016. 2d Am.
Compl. [Dkt. # 60]. Count I alleges pay discrimination on the
basis of gender in violation of Title VII. Id.
¶¶ 69-75. Count II alleges that plaintiff was
terminated because of her age in violation of the ADEA.
Id. ¶¶ 76-80. Count III alleges that she
was retaliated against in violation of Title VII for making
complaints to her employer regarding unequal pay and
discrimination. Id. ¶¶ 81-86. Count IV
alleges that defendant failed to pay plaintiff her owed wages
in violation of the D.C. Wage Payment and Collection Law.
Id. ¶¶ 87-90. On February 12, 2016,
defendant filed an answer, which included a counterclaim for
trespass to chattel against plaintiff. Answer [Dkt # 62]
¶¶ 103-08. Defendant voluntarily dismissed the
counterclaim on February 26, 2016, Notice of Voluntary
Dismissal [Dkt. # 64] after filing an amended answer on
February 25, 2016. Am. Answer [Dkt. #63].
discovery, plaintiff moved for partial summary judgment on
her DCWPCL claim, Mot. for Partial Summ. J. [Dkt. # 75], and
defendant filed a cross-motion for summary judgment on the
same count. Def.'s Cross-Mot. for Partial Summ. J. [Dkt.
#78]. The Court granted defendant's cross-motion for
summary judgment. See Barot, 264 F.Supp.3d at 287.
Defendant also filed a motion for summary judgment on Counts
I, II, and III on March 9, 2017. Def.'s Mot. The motion
has been fully briefed.
judgment is appropriate "if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The party seeking summary judgment
"bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation
marks omitted). To defeat summary judgment, the non-moving
party must "designate specific facts showing that there
is a genuine issue for trial." Id. at 324
(internal quotation marks omitted).
mere existence of a factual dispute is insufficient to
preclude summary judgment. Anderson v. Liberty Lobby,
Inc., Ml U.S. 242, 247-48 (1986). A dispute is
"genuine" only if a reasonable fact-finder could
find for the non-moving party; a fact is "material"
only if it is capable of affecting the outcome of the
litigation. Id. at 248; Laningham v. U.S.
Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987). In assessing
a party's motion, the court must "view the facts and
draw reasonable inferences 'in the light most favorable
to the party opposing the summary judgment motion.'"
Scott v. Harris, 550 U.S. 372, 378 (2007)
(alterations omitted), quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).
dispute of fact exists as to whether the Embassy is an
"employer" for purposes of Title VII aud the ADEA.
VII applies to any employer who "has fifteen or more
employees for each working day in each of twenty or more
calendar weeks in the current or preceding calendar
year." 42 U.S.C. § 2000e(b). Under the ADEA, the
definition of an "employer" is identical, except
that the person or entity must have "twenty or more
employees." 29 U.S.C. § 630(b).
threshold number of employees for application of Title VII is
an element of a plaintiffs claim for relief."
Arbaugh v. Y&H Corp., 546 U.S. 500, 515 (2006).
The Embassy argues that it is not an employer for purposes of
Title VII or the ADEA because it employed fewer than fifteen
people (or twenty under the ADEA), see Def.'s
Mem. at 13-19, and it seeks the entry of judgment in its
favor on that basis.
parties do not dispute that during the relevant time period,
the Embassy had no more than fourteen locally engaged staff.
Def.'s SOF ¶ 6; Pl's SOF ¶ 6. But plaintiff
contends that the ten diplomatic personnel posted to the
Embassy, as well as the Defense Attache's two locally
engaged staff, should be counted as Embassy employees for the
purpose of determining whether the Embassy is subject to the
requirements of Title VII and the ADEA. See Pl's
Opp. at 5. This legal conclusion turns upon the application
of legal principles to disputed facts, and the Court cannot
grant summary judgment on this issue.
Embassy does not meet the employee requirement nnder the
Supreme Court addressed the question of how to determine
whether "an employer 'has' an employee on any
working day" for the purpose of Title VII, and it
determined that the relevant inquiry is whether "the
employer has an employment relationship with the individual
on the day in question." Walters v. Metro. Educ.
Enters., Inc.,519 U.S. 202, 206 (1997). "This test
is generally called the 'payroll method, ' since the
employment relationship is most readily demonstrated by the
individual's appearance on the employer's
payroll." Id.- see Id. at 207 (observing that
the payroll method has also been adopted by the EEOC under
the ADEA). But, the Court also noted that "an individual
who appears on the payroll but is ...